Immunity Legislation Awaits His Action—What Does this Mean for Your Association?
Please Note: This blog is designed for general information only. The information presented at this site is not intended to provide legal advice or a legal opinion and should not be construed as the formation of an attorney-client relationship. Specific questions should be directed to an attorney at NowackHoward, LLC or to another lawyer.
Governor Kemp’s latest Executive Order, issued on July 15, extends the existing mandates that apply to community association swimming pools, clubhouses, tennis courts, gyms, fitness centers, and other amenities. This latest Executive Order extends the requirements applicable to condominiums and homeowners’ associations that were originally imposed in the Executive Order entered on June 11, which are now set to expire on July 31 at 11:59 PM. The constant swirl of changes for community association law can be confusing, which is why we are here to help.
Additionally, the immunity legislation, Senate Bill 359, known as the “Georgia COVID-19 Pandemic Business Safety Act” remains on Governor Kemp’s desk awaiting his signature or veto. If the Governor does not act on the bill, the Act will automatically become law effective on August 7.
The Governor’s Order and this legislation were discussed in our last two blog posts. Please see our June 12 and July 1 Alerts to review our analysis and discussion of those issues.
This Alert analyzes the effects of the continuing mandates amidst the rising number of Georgia COVID-19 cases and discusses what condominium and homeowners’ association boards should consider for operation of the community amenities and common areas during the ongoing pandemic, in accordance with community association law. As always, please contact us to address your community’s specific issues and receive legal advice for your association.
As Cases Increase, So Does Association Risk
Any increase in the number of confirmed cases of COVID-19 increases the accompanying likelihood that a user of a community association swimming pool, clubhouse, tennis court, gym, fitness center, or other amenity will become ill with COVID-19 and claim that the virus was contracted on common property.
Accordingly, we strongly recommend that associations / boards continue to adhere to the mandates imposed by the Governor’s Executive Order and the guidelines and recommendations established by the Georgia Department of Public Health and the Centers for Disease Control discussed in our previous blogs. It is also critical that associations / boards document the efforts taken to comply with the mandates and guidelines, including using logs and the retention of receipts, written contracts and other records to remain protected under these mandates and community association law.
The Proposed “Georgia COVID-19 Pandemic Business Safety Act” Does Not Provide a Defense for Your Association Until It Becomes Community Association Law
The presumption of a person’s assumption of the risk created by the Act will not apply to claims that a person was exposed to the virus prior to its effective date. It is also important to remember that the immunity afforded by the Act does not prevent a person from suing the association or individual board members. The legislation establishes a burden of proof that will be very difficult for a potential plaintiff to satisfy in order to prevail in a COVID-19 lawsuit for damages. The legislation may better position associations to defend prospective cases, but associations must still comply with the mandates and guidelines discussed here and in our previous analyses.
We continue to urge associations to require every amenity user to sign the Acknowledgement of COVID-19 and Assumption of the Risk document we created exclusively for our clients. Even if the Act becomes community association law, we recommend that associations continue to require each user to sign that document to show that all users expressly assumed the risk of contracting COVID-19—both presumptively and actually.
As a reminder, if this new legislation becomes law, it requires certain signage to be posted at a point of entry to the premises that states in at least one-inch Arial font placed apart from any other text, the following: “Warning: Under Georgia law, there is no liability for an injury or death of an individual entering these premises if such injury or death results from the inherent risks of contracting COVID-19. You are assuming this risk by entering these premises.” When this new law becomes effective, we recommend that each association place a sign meeting these criteria at each point of entry to any pool, clubhouse, tennis court, gym, fitness center, or any other community association amenity open for use.
Georgia Does Not Mandate Masks — Can We? Should We?
Governor Kemp’s July 15 Executive Order includes a new provision that suspends any order adopted by a local government that requires persons to wear face coverings, masks, face shields, or any other Personal Protective Equipment while in places of public accommodation or on public property.
We have received a significant number of inquiries asking whether a board of directors can impose a mask requirement when a person is on association common property. There is no universal answer to that question. Because every set of governing documents is unique, each association’s documents must be analyzed to determine if the board’s authority to control the use of common property authorizes the board to impose a mask rule.
Each association’s documents will also need to be analyzed to determine the requirements and authority for enforcing a mask rule once adopted. Before imposing any mask requirements, each board should evaluate the association’s ability and resources to enforce any such rule. Please contact us if your board is considering adopting a mask requirement for common areas so that we can analyze your community’s documents and discuss a plan for implementation.
We will continue to monitor Governor Kemp’s now bi-weekly Executive Orders, and any other government orders and requirements, as they are released. In the meantime, and as always, please contact an HOA attorney with NowackHoward via phone at (770) 863-8900 or through our contact form to discuss your community’s specific issues and unique challenges. We are here to support you in any way your board may need.