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Tag Archives: covid-19

Open Board Meetings and the Coronavirus

Posted on Author By Michael Polulak, Esquire

Associations must continue to function.  Board meetings must be held, and decisions must be made.

The CDC has recommended against any gatherings of ten or more people through at least the middle of May.  Therefore, Association’s must postpone community events and avoid in-person meetings. However, the Association must continue to operate, and the Board must continue to conduct the Association’ s business.

To do so, the board must continue to meet on a regular basis but should do so via teleconference, Skype, Zoom, etc.  Some larger communities with closed-circuit television can televise their remote meetings for their members.  Keep in mind that transparency remains paramount, even when “open” board meetings are being held virtually or remotely.  So, in order to maintain transparency during this difficult time, boards should make their meeting agendas available prior to open meetings.

Associations should also provide a means for its members to propose questions or comments during their meetings.  Some associations have set up separate email accounts for member questions and comments to ensure that they do not become lost among other association-related emails.  Others are having the members email management directly.  Zoom and other software applications have “chat” and “raise your hand” features that allow members to participate virtually.

At the virtual or remote board meeting, business must be conducted as usual.  Motions must be made, discussed among the board members, and voted upon.  The board should review and discuss the comments and questions submitted by members during the ‘new business’ or ‘open questions’ portion of the meeting.

Immediately following the board meeting, it is important to communicate with the members.  Instead of waiting for the meeting minutes to be prepared, finalized, and approved at the next board meeting, the board should consider immediately providing an overview of the meeting to the members.  This overview may be more in-depth than typical meeting minutes to compensate for the fact that the members could not attend in-person. Official meeting minutes should also be prepared and approved at the next open meeting.

At the end of the day, it is important to remember that the association must continue to function.  Open meetings must be as transparent as possible, and communication with the members is key.

CDC Stop The Spread Of Germs Poster

Posted on Author By Francis J. McGovern, Jr., Esquire

On May 13, 2020, the CDC issued a nice “Stop the Spread of Germs” poster that is easily printed on 8 ½” x 11” shipping label stickers.  For example: Avery brand #5165 which are available on-line and at stores such as Staples.

The “Stop the Spread of Germs” and other printable CDC posters are available here:  https://www.cdc.gov/coronavirus/2019-ncov/communication/print-resources.html?Sort=Date%3A%3Adesc

These printable CDC posters may be used in your Association’s Common Areas such as entryways, lobbies, elevators, stairways, mail rooms, trash rooms, package rooms etc. (be aware of potential surface damage caused by the stickers).  Among other things, as restrictions are relaxed, these posters will serve as reminders that the COVID-19 risk remains and that the CDC’s guidelines should still be followed.

Happy 4th of July!!! Why isn’t the pool open?

Posted on Author By Francis J. McGovern, Jr., Esquire

Why isn’t the pool open? What am I paying my assessments for anyway!?

The Fourth of July is a little less than 100 days away.  Memorial Day, a little less than 60 days away.  The Coronavirus crisis continues.  Why are we talking about the pool now?

Some contracts are already in place.  What do we do with them?  Should we modify?  Should we cancel?  Should we breach? Will we be sued?  What will the damages be?

Pool vendors want contacts signed now.  Understandably pool vendors want to plan their season, staffing and financials.

Memories are short.  As every property manager and board member knows, memories are short.  Even after a national crisis, manager and board member appreciation cannot be expected.  Why isn’t the pool open again?

Pool Demand: We May Want the Pool Open at Some Point. People have been shut in their homes for weeks and will likely be shut in their homes for weeks to come.  If the coronavirus crisis abates, residents will want to use the pool immediately.  Pool vendors may not be able to get pools open in a timely manner.

Pools require maintenance anyway. 

Pool contractors have an interest in making money and keeping their employees working.  While allowing for their self-interest, some pool experts recommend opening, operating at a minimum level and closing even if the pool is never open to swimmers in 2020 (the “No Swimming Option”).

Reasons cited include:

-pools that are not maintained can become a breeding ground for mosquitos and other pests,

-pools that are not opened and maintained become swamps and will take longer to open,

-equipment works better when it is runs rather than when it idles for more than a year and a half,

-last year’s winterization may only be good for last year: plugs may have fallen out, lines may have filled with water, chemicals may have dissipated. The pool should be winterized again.

So?  Communicate the conundrum to your residents.  Attempt to understand consensus.  Do not underestimate the value of relationships.  Pool vendors want to work with you and with your management company.  You should want to work with them.  My experience has been that there is not an overabundance of good pool vendors.

Be optimistic about the coming pool season.   The Associations and the vendors should consider their BATNAs.  What’s the best alternative to a negotiated agreement?  Fighting is a lose-lose.  Incorporate a No Swimming Option in agreements.  Although I strongly prefer guarded pools, under certain circumstances, Association pools may go without guards anyway.  Estimate damages in case of breach.  Damages are often far less than the contract price and may justify the No Swimming Option anyway.  Negotiate a discount for prepayment – vendor cashflow is key to many or, negotiate a longer payment period – association cashflow is key to many. Regardless, the coronavirus crisis will pass, and Association management, counsel and pool vendors should be able to reach accommodations acceptable to all.

The above information is not legal advice and shall not create an attorney-client relationship.  This information is general and may not be applicable to your particular circumstances.  You should review your particular circumstances with Association counsel.

Coronavirus Aid, Relief, and Economic Security Act or the CARES Act

Posted on Author By The Association Lawyers

On March 27, 2020, President Trump signed into law the Coronavirus Aid, Relief and Economic Security (CARES) Act, which provides relief to taxpayers affected by the novel coronavirus (COVID-19). The CARES Act is the third round of federal government aid related to COVID-19.

The bill authorizes emergency loans to distressed businesses, including air carriers, and suspends certain aviation excise taxes.

With respect to small businesses, the bill

  • establishes, and provides funding for, forgivable bridge loans; and
  • provides additional funding for grants and technical assistance.

The bill also provides funding for $1,200 tax rebates to individuals, with additional $500 payments per qualifying child. The rebate begins phasing out when incomes exceed $75,000 (or $150,000 for joint filers).

The bill establishes limits on requirements for employers to provide paid leave.

With respect to taxes, the bill

  • establishes special rules for certain tax-favored withdrawals from retirement plans;
  • delays due dates for employer payroll taxes and estimated tax payments for corporations; and
  • revises other provisions, including those related to losses, charitable deductions, and business interest.

With respect to health care, the bill

  • provides additional funding for the prevention, diagnosis, and treatment of COVID-19;
  • limits liability for volunteer health care professionals;
  • prioritizes Food and Drug Administration (FDA) review of certain drugs;
  • allows emergency use of certain diagnostic tests that are not approved by the FDA;
  • expands health-insurance coverage for diagnostic testing and requires coverage for preventative services and vaccines;
  • revises other provisions, including those regarding the medical supply chain, the national stockpile, the health care workforce, the Healthy Start program, telehealth services, nutrition services, Medicare, and Medicaid.

With respect to education, the bill

  • temporarily suspends payments for federal student loans; and
  • otherwise revises provisions related to campus-based aid, supplemental educational-opportunity grants, federal work-study, subsidized loans, Pell grants, and foreign institutions.

The bill also authorizes the Department of the Treasury to temporarily guarantee money-market funds.

To read the full bill please click on the following link: https://www.congress.gov/bill/116th-congress/house-bill/748/text

Governor Murphy’s Stay At Home Order

Posted on Author By Francis J. McGovern, Jr., Esquire

Governor Murphy issued Executive Order Number 107 this afternoon. Governor Murphy described the Order as his “Stay at Home Order”. The original Order is 13 pages long and is available on the Governor’s website. The attached copy has been modified to remove four pages of “Whereas” clauses and insert headings for convenience purposes only. These headings are not a part of Executive Order 107. As you can see from the headings, the Order addresses the following main points.
1.      Remain at home or at your place of residence.
2.      Must practice social distancing.
3.      Do not use public transport if you do not have to.
4.      No in-person gatherings.
5.      Non-essential brick & mortar retailers must close to public.
6.      Essential retail must use social distancing.
7.      Delivery and takeout are permitted.
8.      Recreational and entertainment businesses are closed.
9.      Remote work arrangements are required.
10.  On-site workers: only minimal necessary to ensure essential operations. This paragraph is most important to Associations as it allows for workers who must be physically present to perform their duties for example: certain administrative staff as well as janitorial and custodial staff.
25. Enforcement
Governor Murphy highlighted that many New Jersey residents are fortunate enough to own summer homes at the Jersey Shore. He warned against going there, however. Governor Murphy warned that these seasonal areas lack the healthcare and other infrastructure necessary to adequately handle an influx of summer residents at this time, in this crisis. Governor Murphy’s message, in short, was “Stay Home”.
Governor Murphy’s Executive Order 107 references enforcement statutes N.J.S.A. App. A:9-49 & 50 (attached) which make violation and assisting in a violation a Disorderly Persons offence subject to imprisonment for a term not to exceed 6 months or a fine not to exceed $1,000 or both in the discretion of the court.

Families First Coronavirus Response Act

Posted on Author By The Association Lawyers

The Families First Coronavirus Response Act (FFCRA or Act) requires certain employers to provide employees with paid sick leave or expanded family and medical leave for specified reasons related to COVID-19. The Department of Labor’s (Department) Wage and Hour Division (WHD) administers and enforces the new law’s paid leave requirements. These provisions will apply from April 1, 2020 through December 31, 2020.

Generally, the Act provides that covered employers must provide to all employees:[2]

  • Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay where the employee is unable to work because the employee is quarantined (pursuant to Federal, State, or local government order or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
  • Two weeks (up to 80 hours) of paid sick leave at two-thirds the employee’s regular rate of pay because the employee is unable to work because of a bona fide need to care for an individual subject to quarantine (pursuant to Federal, State, or local government order or advice of a health care provider), or care for a child (under 18 years of age) whose school or child care provider is closed or unavailable for reasons related to COVID-19, and/or the employee is experiencing a substantially similar condition as specified by the Secretary of Health and Human Services, in consultation with the Secretaries of the Treasury and Labor.

A covered employer must provide to employees that it has employed for at least 30 days:[3]

  • Up to an additional 10 weeks of paid expanded family and medical leave at two-thirds the employee’s regular rate of pay where an employee is unable to work due to a bona fide need for leave to care for a child whose school or child care provider is closed or unavailable for reasons related to COVID-19.

Covered Employers: The paid sick leave and expanded family and medical leave provisions of the FFCRA apply to certain public employers, and private employers with fewer than 500 employees.[4] Most employees of the federal government are covered by Title II of the Family and Medical Leave Act, which was not amended by this Act, and are therefore not covered by the expanded family and medical leave provisions of the FFCRA. However, federal employees covered by Title II of the Family and Medical Leave Act are covered by the paid sick leave provision.

Small businesses with fewer than 50 employees may qualify for exemption from the requirement to provide leave due to school closings or child care unavailability if the leave requirements would jeopardize the viability of the business as a going concern.

Qualifying Reasons for Leave:

Under the FFCRA, an employee qualifies for paid sick time if the employee is unable to work (or unable to telework) due to a need for leave because the employee:

  1. is subject to a Federal, State, or local quarantine or isolation order related to COVID-19;
  2. has been advised by a health care provider to self-quarantine related to COVID-19;
  3. is experiencing COVID-19 symptoms and is seeking a medical diagnosis;
  4. is caring for an individual subject to an order described in (1) or self-quarantine as described in (2);
  5. is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or
  6. is experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

Under the FFCRA, an employee qualifies for expanded family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19.

Duration of Leave:

For reasons (1)-(4) and (6): A full-time employee is eligible for up to 80 hours of leave, and a part-time employee is eligible for the number of hours of leave that the employee works on average over a two-week period.

For reason (5): A full-time employee is eligible for up to 12 weeks of leave at 40 hours a week, and a part-time employee is eligible for leave for the number of hours that the employee is normally scheduled to work over that period.

Calculation of Pay:[5]

For leave reasons (1), (2), or (3): employees taking leave shall be paid at either their regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).

For leave reasons (4) or (6): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).

For leave reason (5): employees taking leave shall be paid at 2/3 their regular rate or 2/3 the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period—two weeks of paid sick leave followed by up to 10 weeks of paid expanded family and medical leave).[6]

Tax Credits: Covered employers qualify for dollar-for-dollar reimbursement through tax credits for all qualifying wages paid under the FFCRA. Qualifying wages are those paid to an employee who takes leave under the Act for a qualifying reason, up to the appropriate per diem and aggregate payment caps. Applicable tax credits also extend to amounts paid or incurred to maintain health insurance coverage. For more information, please see the Department of the Treasury’s website.

Employer Notice: Each covered employer must post in a conspicuous place on its premises a notice of FFCRA requirements.[7]

Prohibitions: Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid sick leave under the FFCRA and files a complaint or institutes a proceeding under or related to the FFCRA.

Penalties and Enforcement: Employers in violation of the first two weeks’ paid sick time or unlawful termination provisions of the FFCRA will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act. 29 U.S.C. 216; 217. Employers in violation of the provisions providing for up to an additional 10 weeks of paid leave to care for a child whose school or place of care is closed (or child care provider is unavailable) are subject to the enforcement provisions of the Family and Medical Leave Act. The Department will observe a temporary period of non-enforcement for the first 30 days after the Act takes effect, so long as the employer has acted reasonably and in good faith to comply with the Act.  For purposes of this non-enforcement position, “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the Act in the future.

 

[1] Wage and Hour Division does not administer this aspect of the law, but notes that every dollar of required paid leave (plus the cost of the employer’s health insurance premiums during leave) will be 100% covered by a dollar-for-dollar refundable tax credit available to the employer. For more information, please see the Department of the Treasury’s website.

[2] Employers of Health Care Providers or Emergency Responders may elect to exclude such employees from eligibility for the leave provided under the Act.

[3] Employers of Health Care Providers or Emergency Responders may elect to exclude such employees from eligibility for the leave provided under the Act.

[4] Certain provisions may not apply to certain employers with fewer than 50 employees. See Department FFCRA regulations (expected April 2020).

[5] Paid sick time provided under this Act does not carry over from one year to the next. Employees are not entitled to reimbursement for unused leave upon termination, resignation, retirement, or other separation from employment.

[6] An employee may elect to substitute any accrued vacation leave, personal leave, or medical or sick leave for the first two weeks of partial paid leave under this section.

[7] The Department has issued a model notice:

https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Non-Federal.pdf

The U.S. Department of Labor has resources to help workers and employers prepare for the COVID-19 virus.  Visit their website for more information: https://www.dol.gov/coronavirus

Coronavirus Update

Posted on Author By Francis J. McGovern, Jr., Esquire

The following is a follow up to my March 12, 2020 article. It is NOT a substitute for CDC, New Jersey Department of Health or other governmental directive or guidance. The following is NOT a substitute for a healthcare professional’s advice. We are lawyers who represent Associations. We are NOT public health officials. We are NOT healthcare professionals. We may not be relied upon for public health or healthcare advice. 

The following observations are provided merely as one perspective on Coronavirus-related issues in the general Association context. Public health officials and healthcare professionals should be relied upon for public health and healthcare guidance. Questions involving actual facts must be discussed with our attorneys or, in cases where another lawyer represents your Association, with that attorney.      
Sources of Information, Recommendations & Updates.
Among other things, the Centers for Disease Control and Prevention (the “CDC”) have noted that: “Older adults and people who have severe underlying chronic medical conditions like heart or lung disease or diabetes seem to be at higher risk for developing more serious complications from COVID-19 illness. Please consult with your health care provider about additional steps you may be able to take to protect yourself”. The CDC website: https://www.cdc.gov/coronavirus/2019-ncov/ provides information on how the virus spreads, symptoms, steps to prevent illness, what to do if you are sick along with additional information and answers to frequently asked questions “FAQs”. The New Jersey Department of Health provides related information: https://www.nj.gov/health/cd/topics/ncov.shtml. Go to the CDC’s and the New Jersey Department of Health’s websites regularly for updated information.
A Default Approach?
Subject to the above, there is an argument for, to the extent reasonable in the circumstances, Association members conducting themselves in a way that assumes others have been exposed to Coronavirus. Protocols have been based on this approach for years. For example, when healthcare professionals assume that every patient has been exposed to a transmittable disease, safety protocols are followed regardless. Transmission risk is thereby mitigated. Social distancing, among other things, is the order of the day but directions, restrictions and recommendations are changing rapidly. Should five people pile into an elevator? Probably not.
Enhance Cleaning Measures
Cleaning should be enhanced consistent with the CDC’s and the New Jersey Department of Health’s recommendations.
Sick or Exposed People Should Not Go to Work
Association employees/agents/vendors etc. who are sick, have been exposed to the virus or have been in contact with someone who has been exposed to the virus should not go to the Association.
Avoid In-Person Gatherings
The CDC advises that the virus is thought to spread mainly from person-to-person between people who are in close contact with one another. Given this, until the CDC provides information that suggests otherwise, Associations, especially Age Restricted Communities, would be wise to minimize/avoid in-person gatherings.
Board & Membership Meetings May be Held Via Teleconference & Webinar
Board & Membership meetings may be held via teleconference and similar arrangements. These arrangements allow for remote participation by upwards of 1,000 people, far fewer than the typical Association meeting attendance. Association management and counsel should work together to facilitate meetings.
Common Areas Should be Closed & Congregating Discouraged
Regardless of whether the State’s recent directive applies to private facilities, Association Common Element facilities should be closed to the extent that they are inconsistent with the CDC’s and/or the New Jersey Department of Health’s guidance. For example, if they have not already been closed, gyms, kitchens, recreation rooms, etc. (areas that encourage in-person congregating, close personal contact, bodily fluid exposure etc.) should be closed. Fobs, access cards etc. should be disabled and the doors should be locked. In Common Element areas that may remain open such as lobbies, mailboxes, computer centers, hallways, trash rooms etc. congregating should be prohibited, and staggered/timed access may be considered.
Insurance: Notice of Threats/Claims
With respect to threats/claims against the Association, its agents, employees etc., insurance carriers (especially D & O carriers) must be immediately notified of threats/claims so that, if there is a claim, the carrier will not attempt to deny coverage based on a failure to provide timely notice. Of course, insurance carriers may deny claims based on things like the type of insurance, event, claim or policy timing, policy provisions, endorsements, facts of the threats/claims etc. Now though, Associations should be taking reasonable steps to mitigate risks and immediately reporting threats/claims. Coverage debates can be saved for another day.
 
Open Houses & Move-Ins
Open houses should be suspended and, to the extent possible, move-ins should be rescheduled or scheduled at a time when traffic is at a minimum and maintenance personnel are available for enhanced cleaning to elevators, hallways etc.
 Credible Infection & Exposure Reports
Gather, Report, Communicate, Mitigate
This area is fraught with uncertainty. Nevertheless, while proceeding carefully, the Association should take steps to gather information, report information to public officials, communicate to residents (although not the identity of the infected or exposed individual) and mitigate exposure. Infection and exposure reports might be considered credible if they come from the person themselves, public health officials or family members of the affected person. Of course, depending on the facts, other sources may be credible, and the previously stated sources may not.
Should the Association ask residents to notify managers if they have coronavirus or have been exposed? Given the seriousness of the issue, especially if the community is a high rise or is attached housing, the answer is “yes”. Association management may be in a particularly good position to find out this information (although presumably if someone tested positive, the healthcare professional would have already alerted public health officials), advise public health officials, warn the residents and take responsive measures. What if the Association is wrong? Given the circumstances, it is better to err on the side of gathering information, reporting the information to health officials, communicating to residents (although not the identity of the infected or exposed individual) and mitigating to the extent reasonably possible: limit travel areas and contact, clean and disinfect regularly etc.
Panic is Not the Answer
Panic is never the answer, but Association members and managers must keep themselves informed. Reasonable measures will allow Associations to continue to function while mitigating risk and assisting in fighting the virus.
Questions & More Questions
New questions involving actual facts are arising by the minute. Do not hesitate to submit them.
If you have any questions, please contact me.
Thanks,
Fran