Someone is Sick: Now What?
The calls related to the coronavirus started coming earlier and earlier, says Sandra Gottlieb, a founding partner of California homeowner association law firm SwedelsonGottlieb. “As the death counts climbed in the United States, people were panicking. It was ratcheting up every single day, and I heard the terror.”
In the midst of a public health emergency like the coronavirus, scared owners increasingly are looking to their community associations to protect them from neighbors who may be contagious. Closing down common areas and the like to reduce the spread of germs is one thing, but what can the board of directors and the manager do when a resident actually comes down ill? What is their responsibility to the other owners?
“The most challenging issue so far,” said Ken Bertolucci, president of NS Management in Skokie, Ill., in early April 2020, “is following the proper protocol when a building resident is diagnosed with the virus.”
It’s especially difficult because, as attorney Michael Kim of Schoenberg Finkel Newman & Rosenberg, LLC in Chicago puts it, some owners can get “medieval.”
Owners Gone Wild
When word gets around during a public health emergency that a resident is ill, the response from some is predictable. “Of course, we have the nosy-neighbor syndrome,” says Jennifer Horan, a shareholder in the Naples, Fla., office of Becker & Poliakoff.
“Several of our boards have experienced homeowners demanding the identity of the affected party,” Bertolucci says. “Some have been subject to verbal abuse and threats of legal action.”
At one association, he says, an owner whose spouse has a serious medical condition insisted a new owner not be allowed to move in on his floor.
Kim has seen even worse. One of his clients had owners asking if they could shut off the ventilation to a sick person’s unit.
Privacy Rights Prevail
Thankfully, most owners don’t go this far, limiting their pushiness to demands for information. Managers and boards must balance a community’s right to know about an infection risk against an ill owner’s right to privacy.
To avoid confusion, managers should make sure their boards understand that the applicable privacy rights don’t stem from the Health Insurance Portability and Accountability Act (HIPAA). “HIPAA doesn’t apply to associations,” Kim says, “but there are still common law privacy rights.” And those rights generally tip the balance in favor of protecting the inflicted owner.
“I tell my boards in condo associations that they don’t necessarily have the duty to inform the owners that there’s been a positive test, but that it’s probably the best idea,” Horan says. “It depends on how active the community is, what kinds of amenities you have, etc. The more closely the residents gather, the greater the duty.”
No matter how great the duty, though, she advises against sharing too much information. “We don’t recommend giving out names or floors. There should be no identifying information unless the owner agrees in writing.”
It’s important that boards and managers not succumb to the inevitable pressure to reveal more information. “Owners need to know there are privacy rights more compelling than them knowing who is sick,” says Sandra Gottlieb, a founding partner of California homeowner association law firm SwedelsonGottlieb.
Ideally, managers can help owners understand how they benefit from the limited information.
“We tell them ‘we’re advising you of this so you can take the needed extra precautions to protect yourself and your family,’” says Paul Grucza, director of education and client development at the Seattle-based management company CWD Group, Inc., “but we won’t divulge the identity of the person.”
That discretion should reassure owners who subsequently fall ill.
Managing the Sick Owner
Some communities might run into problems with contagious owners who don’t take steps to minimize their exposure to others. A board can suggest diagnosed owners self-quarantine, but it generally can’t require such sequestration in the absence of a government mandate. Even then, enforcement issues can arise.
“If people are obviously symptomatic, you need to remind them — at least where required by government order — that they need to self-quarantine,” Kim says. “If they’re acting irresponsibly and refuse to abide by appropriate measures, my recommendation is to call the Department of Health or the police and let them deal with it.”