With the expansion of vaccine eligibility to all Georgians aged 16 and over, Governor Brian Kemp’s Executive Order, Empowering a Healthy Georgia, issued March 31, 2021 (the “March 31st Order”), substantially revises the guidance and mandates applicable to all Organizations that continue in-person operations during the COVID-19 pandemic—including community associations.
The provisions in the March 31st Order became effective on April 8, 2021 and ease certain restrictions on community association operations. However, important mandates remain.
We highlight here some of the key changes in the March 31st Order applicable to community associations, as well as additional considerations for operating swimming pools and other amenities.
Public Health State of Emergency Continues
The March 31st Order notes that Governor Kemp extended Georgia’s Public Health State of Emergency again until April 30, 2021. The March 31st Order continues the requirement that all residents and visitors of Georgia practice Social Distancing by keeping six (6) feet of separation between themselves and other people outside their home.
Governor’s Mandates for Association Operations and Facilities Continue
In light of the ongoing Public Health State of Emergency, the March 31st Order continues to require that Organizations, which encompasses all nonprofit corporations including homeowner and condominium associations, implement measures which mitigate the exposure and spread of COVID-19. As was the case with prior Executive Orders, community associations must operate their amenities, including clubhouses, gyms, fitness centers, and pools, in compliance with the requirements of the March 31st Order.
Effect on General Association Operations and Amenities
The Governor’s previous Executive Orders required Organizations, including community associations, to implement a list of measures to limit the exposure and spread of COVID-19. While the March 31st Order still requires community associations to implement measures to mitigate the exposure and spread of COVID-19, the list of measures is now discretionary. Associations remain obligated to implement some measures and not implementing any measures is not a prudent option if the association wants the protection afforded by the Georgia COVID- 19 Pandemic Business Safety Act (recently extended until July 14, 2022), which limits claims for COVID-19 liability except in cases of gross negligence, willful and wanton misconduct, reckless infliction of harm or intentional infliction of harm.
The March 31st Order states that the following 12 measures may be among those implemented to mitigate exposure and spread of COVID-19:
- Any measures that have been proven effective to control the spread of COVID-19;
- Screening and evaluating Workers (defined as any employees, independent contractors, agents, volunteers, or other representatives of an Organization) who exhibit Symptoms of COVID-19;
- Requiring Workers who exhibit Symptoms of COVID-19 to not report to work or to seek medical attention;
- Posting signage at the entrances to the facility stating that individuals who have been diagnosed with COVID-19, have Symptoms of COVID-19, or have had contact with a person that has or is suspected to have COVID-19 within the past fourteen (14) days and have not completed the Post-Exposure Quarantine Protocol shall not enter the facility;
- Enhancing sanitation as appropriate;
- Disinfecting frequently touched surfaces regularly, including, but not limited to, PIN entry devices, signature pads, and other point of sale equipment, door handles, and light;
- Increasing space between Workers’ worksites to maintain social distancing;
- Permitting Workers to take breaks and meals outside, in their office or personal workspace, or in such other areas where proper Social Distancing is attainable;
- If the Organization engages volunteers or has members of the public participate in activities, prohibiting volunteering or participation in activities for persons diagnosed with COVID- 19, having exhibited Symptoms of COVID-19, or having had contact with a person that has or is suspected to have COVID- 19 within the past fourteen (14) days and having not yet completed the Post-Exposure Quarantine Protocol;
- Ensuring ventilation systems operate properly and increasing circulation and purification of air within facilities as practicable;
- If the Organization provides childcare services, complying with the regulations for “Childcare Facilities” included in Section VI of the Order titled “Education & Children;” and
- Any food service areas within an Organization’s facility must adhere to the guidelines set forth in Section III of the Order, titled “Restaurants & Bars.”
Removal of Obligation of Community Associations to Prohibit Gatherings
Notably, the March 31st Order removed restrictions on “Gatherings.” This means that community associations are no longer required to prohibit “Gatherings” in association amenities. Under prior Executive Orders, a “Gathering” was defined as more than fifty (50) persons physically present at a Single Location if, to be present, persons are required to stand or be seated within six (6) feet of any other person. This restriction no longer applies.
Community associations will need to determine whether to impose requirements for gatherings on association property, for example, that all attendees wear masks. Associations may be required to post reasonable public notice of any applicable Local Option Face Covering Requirements and state whether the association consents to enforcement on its property. The CDC’s position is that masks are not required to be worn in a gathering if ALL the attendees have been vaccinated. Contact your HOA or condominium association attorney to discuss your association’s options and risks for allowing gatherings on association property.
DPH COVID-19 Guidance for Public Swimming Pools Remains in Effect
Associations should also be mindful that the Georgia Department of Health’s COVID-19 Guidance applicable to Public Swimming Pools remains in effect. This guidance includes measures that “are strongly recommended” for all operators of public swimming pools, which includes most community association swimming pools. This guidance remains the sole official State of Georgia guidance on operation of swimming pools and provides recommendations for community associations to implement to mitigate exposure and reduce spread of COVID-19. You can find the guidance here.
New Requirements for Opening and Operating Spaces Where Food Is Served
A key difference in the March 31st Order from the prior Executive Orders is for communities with event facilities where food is served, such as clubhouses, snack bars and other areas for banquet, event, or reception facilities. The March 31st Order includes a new requirement that such amenities comply with the mandates set forth in the Order for Restaurants and Bars. For community associations to open or operate any amenity where food is served, there are 11 measures that must be implemented.
While the new March 31st Order does not specifically address the operation of sport courts, pools, pool decks, and other outdoor amenities, the Order’s requirements for food service areas of spacing seating and installing barriers to space non-cohabitating groups at least 42” apart may be instructive for spacing of seating areas in other common areas of a community, even where food is not served.
Changes to Requirements for Gyms and Fitness Centers
The requirements mandated under the March 31st Order pertaining to the operation of all gyms and fitness centers (including any pools located inside gyms and fitness centers) have been modified from the previous Executive Order, with some of the previous requirements lifted. However, Organizations are still required to implement measures to prevent the spread COVID-19 and there is not the discretion that applies to general association operations discussed above. Community associations with gyms or fitness centers must implement the following list, as applicable for their facilities:
- Utilizing contactless forms of patron check-in where practicable;
- Providing antibacterial sanitation wipes as available at or near equipment and requiring users to wipe down the equipment after use;
- Enforcing Social Distancing and prohibiting congregating between non-cohabitating patrons, especially in pools, group fitness classes, and areas where group sports regularly occur;
- Requiring no less than six (6) feet of distance between patrons participating in group fitness classes and encouraging the use of face coverings by class participants; and
Requiring rooms and equipment used for group fitness classes to be cleaned and disinfected regularly.
Enforcement of the Governor’s Executive Order
Like the Governor’s prior Executive Orders, any person who violates the March 31st Order shall be guilty of a misdemeanor. However, the Order provides that no Organization shall be mandated to close for failure to comply with the March 31st Order. Notwithstanding this provision, the Order also states that nothing in this provision shall be construed to prohibit the closure of an Organization by appropriate authorities for any other lawful reason.
Best Practices to Limit Association Liability
The best practice for opening community association amenities remains to continue with modified amenity operations designed to mitigate the exposure and spread of COVID-19 and to minimize association liability. This includes continuing to follow as many of the 12 measures required for community associations in the March 31st Order, as well as following applicable, evolving guidance from the Centers for Disease Control and the Georgia Department of Public Health.
All Georgia homeowner and condominium associations should also continue to post the signage required by the Georgia COVID-19 Pandemic Business Safety Act, to be able to claim the immunity from liability for damages in a lawsuit involving transmission, infection, exposure, or potential exposure of COVID-19. More details about the Act and the signage are discussed in our previous blog on the Act.
In addition, HOA and condominium associations should contact their community association attorney to consider requiring each user to sign an Assumption of Risk document so, when entering an amenity, a person will have assumed the risk of contracting COVID-19 both presumptively and actually.
Contact the HOA Attorneys at NowackHoward to Help Advise Your Board of Directors
At NowackHoward, we understand the importance of residents in community associations having access to their amenities and common areas and the urge to open these facilities this spring and summer. As always on our blog, this post is general information, and it is not legal advice. Your board of directors should contact your community association attorney for legal advice before making any decision on opening association common areas and to discuss the specific details and issues for your community, as well as the most current government mandates and guidance.
Our HOA attorneys represent condominium associations and HOAs throughout Georgia. To learn more about our practice, HOA attorneys or how we can help guide your community, contact us at (770)-863-8900 or email us at firstname.lastname@example.org.
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