“This is a marathon – not a sprint, which was the easy part – now we need to pace ourselves and these distancing measures need to be sustainable.”
So said Governor Polis on April 20th, when he announced the pending end of the Covid-19 Sprint, which was intended to flatten the Covid-19 Curve, and to protect the State’s critical health care infrastructure. We are now commencing the COVID-19 Marathon, a term that aptly describes the long road to recovery.
In his speech, Gov. Polis detailed what the period commencing April 27th through May 4th may look like. During this time-frame certain areas/businesses will be allowed to re-open, including state parks, recreation areas, personal services such as salons and tattoo parlors, and retail businesses for curbside delivery and phased-in public openings, subject to the goal of 60% – 65% social distancing requirements. However, gyms, restaurants and bars will still be under lockdown.
Aside from the State’s orders, each individual county may adopt different more restrictive health orders, or each county may apply to the State for clearance to be less restrictive.
Specifically the “Safer at Home” Guidelines provide:
- Most people still stay at home as much as possible and avoid unnecessary social interaction
- Strong protections for vulnerable populations
- Healthcare capacity is increasing
- Testing and monitoring capacity is increasing
While the State is reducing the quarantine protocols, several counties continue to increase theirs. Summit County has maintained their ban on short term rentals through the end of May. Denver, more in line with Summit County, has increased its requirements for social distancing and has banned sharing of recreational equipment such as soccer balls and frisbees, even among family members in public parks. Denver has also indicated it will extend its prohibition on gatherings over 10 people, which is set to expire on May 11.
Amongst all of this, the President is calling for an easing of the restrictions, which is encouraging protests against continued restrictions. Lack of clear guidance from governmental entities has caused confusion and has resulted in directors being challenged on their management of the common elements. Questions are being asked, while no clear answers are available. Does the association open its club house? Can the association open its pool? Should the tennis courts re-open? If yes, to what extent and with what limitations? And, no matter what choice the board makes, somebody will be upset.
To that end, the most critical component in evaluating whether an association should re-open its facilities is to make sure the board is making an informed decision. Each association is different and each board must consider what is in the best interest of their specific community, based upon all available information.
Where can you find this information? The first place to look is to your local public health authorities, and to evaluate both the restrictions and recommendations contained in your local public health order. Each will be different.
Also, review any general health information that is available. Sites like the Centers for Disease Control contain information on keeping your community safe.
Boards can also review guidelines and recommendations from entities that govern specific types of sports and facilities. For example, the United States Tennis Association recently provided its recommendations for playing tennis safely, both in terms of tennis player tips and recommendations, and facility and programming recommendations, that could be relied on in determining whether to re-open tennis courts.
Finally, the association should consider the following factors:
- What type of amenity is being discussed?
- What is the ability of a resident to use the facility in a safe manner?
- What is the feasibility of, and associated costs with, frequent disinfection of equipment and users being able to safely distance themselves from one another?
Considering these factors, an association might be able to open some facilities with certain limitations. An association could, for example, limit capacity in a particular amenity and require registration prior to use, thus minimizing owners’ frustrations at showing up and being turned away. Or, an association might decide to keep some or all amenities closed if the cost to open is prohibitive.
In all cases, however, if the association makes an informed decision to open the pool, club house or playground, such decisions should be well thought out and documented in the meeting minutes. Preferably, the board should adopt a separate resolution clearly adopting its findings and sources of information and showing that its decision to re-open was informed.
Additionally, if an association makes an informed decision to open common element recreational facilities this summer, we recommend requiring users to sign express waivers of liability and indemnity agreements.
Finally, as with many prior blogposts we’ve provided during the pandemic, keep in mind that our information and recommendations are always in a wait-and-see pattern. What we say today, may change tomorrow given updated information. We are hoping Gov. Polis issues an updated order soon to provide more clarification on the Safer at Home guidelines, and we will bring you up to speed once it is available.
If you have any questions on the above, please feel free to contact any of the Altitude Community Law attorneys at 303-432-9999.