By: Gregory J. Fioritto, Esq.
The ongoing pandemic has raised many new and difficult questions for community association boards. One of the most frequently-asked questions is whether a board should disclose the presence of a known case of COVID-19 in the community to the other residents.
The issue is complex because it raises two equally compelling interests and seemingly pits them against each other. On the one hand, you have the privacy concerns of the individual resident with the virus, who may not want their identity disclosed to the community in any way, shape or form. On the other hand, you have the very substantial interest of the board in protecting the health and safety of the community from a highly contagious and (in some cases deadly) virus.
We have, in our country’s laws, a well-established and highly-prized “right to privacy.” A member of a community association can and should reasonably expect, all things being equal, that their present health and medical status is their own private concern and not something that can or will ever be disclosed to the membership by the Board of Directors or the association’s management in any manner.
However, as we all know in this unprecedented time, all things are not equal. Never before have association boards been forced to weigh, in such stark terms, the disclosure of private, sensitive information about an individual member against the potential deadly harm that could result to other members of the community if the board does not disclose the information.
It is well-accepted that a board should not disclose to the community any specific identifying information (e.g., name or address) about a resident who is COVID-19 positive without their express written permission. This is true regardless of whether the resident in question is also a member of the association (i.e., both tenants and owners are equally entitled to protection of their privacy).
That boundary being established, a board does have a duty to disclose potential dangers to its community members once they become known. Indeed, a board that knows about the presence of a COVID-19 positive resident in the community and that fails to advise the members in any manner about this fact may well be subjecting the board and the association to potential liability.
As a lawyer, one can easily conceive of a possible “nightmare” scenario where the board has knowledge of a COVID-19 case but does not apprise the community of the increased danger presented, and another member in the community (perhaps living in the same building as the COVID-19 infected person) becomes seriously ill or dies. The owner who becomes ill (or their estate, if they pass) may assert that the Board was negligent in failing to warn the community in some fashion of the increased threat level presented by the infected resident.
Regardless of whether a COVID-19-infected resident has given any permission to the board to disclose their illness or identity, a board may inform other residents in a more generalized way about the presence of the infected person in the community without unduly compromising the infected person’s privacy. A board could adequately apprise its community’s residents about the presence of the COVID-19 infected individual without disclosing any specific, identifying information about the person. For example, if the infected resident lives in a 4-unit building, the Board could reasonably decide, in balancing the privacy rights of the infected individual against the safety of the community, to advise only the residents within that particular building that a person with COVID-19 is living in the building. Disclosure of the COVID-19 case beyond that particular building to the rest of the community may be unnecessary if the community does not have any other shared amenities (e.g., no clubhouse, pool or grouped mailbox stacks).
As with anything, the “right” advice for each community board in acting on COVID-19 issues cannot be decided within a vacuum. There is no “one size fits all” – such advice and judgment must always be tailored to the nature of each unique community in light of the particular facts and circumstances in play. Board members should examine these issues with care as they arise, act in reliance on the advice of the appropriate professionals, and make the most well-informed and balanced decisions that they can in these challenging times.
Gregory J. Fioritto is a partner with the Firm. He graduated from the University of Michigan in Ann Arbor with High Distinction in 1997, where he obtained his Bachelor of Arts in Psychology and received numerous honors, including Phi Beta Kappa and recognition as an Angell Scholar. Mr. Fioritto earned his Juris Doctorate from the University of Michigan Law School in 2000. He joined the Firm in 2003 and has spent nearly his entire legal career practicing in the field of condominium, HOA and community association law.
Mr. Fioritto has extensive experience in virtually every facet of condominium and HOA law, including, but not limited to: drafting master deed and bylaw amendments and guiding associations through the amendment process, drafting rental restriction amendments (including rental caps and bans), managing condominium conversions, handling Fair Housing disputes and claims, counseling boards and managers on insurance and casualty loss matters, collecting assessments, conducting lien foreclosures, assisting associations with bylaw enforcement, and the handling of FHA certification issues.
He is also well-versed in the many developer-related matters that can and do affect associations, including the application of the Condominium Act and other laws to “unfinished” condominium and HOA projects, “transition of control” issues, defect litigation, and the enforcement of association rights in developer disputes. He has significant expertise in assisting new associations with maximizing and protecting their legal rights and leverage in transition negotiations with new project developers and builders.
Mr. Fioritto has attended literally hundreds of board and association meetings over the course of his career. His experience has given him a particular interest in educating co-owners and board members on the many benefits of the proper application and use of parliamentary procedure at meetings.
He has lectured on a frequent basis for many years on condominium and HOA-related topics at seminars sponsored by the Community Associations Institute (CAI) and the United Condominium Owners of Michigan (UCOM).
As a partner with the firm, Mr. Fioritto helped pioneer the firm’s exclusive “Condo & HOA B.E.A.T. (Board Education and Training)” program, an ongoing monthly series of free educational sessions held in Canton and Mt. Clemens and which are open to all (not just firm clients).
In further service of the firm’s dedication to the ongoing education of condominium and HOA boards and their association members, Mr. Fioritto recently helped create the firm’s “Neighborhood Know How” educational program. As part of this program, the firm provides valuable free educational sessions in conjunction with local municipalities.
In addition to community association law, Mr. Fioritto has experience with commercial and residential real estate transactions and small business formation (including corporations and limited liability companies).
Mr. Fioritto currently serves as President of his own condominium association in Canton, Michigan. His years of service on his own Michigan condominium board give him a unique and more complete perspective among attorneys of the many practical problems and legal issues that are encountered by community association boards on a daily basis.
He enjoys spending his free time with his two sons, attending Michigan football games (Go Blue!) as well as vacationing up north in the state’s “thumb area.”