An ongoing legal battle unfolding in the sunshine state is shining a light on the difficult questions surrounding the delicate balance between public safety and personal privacy as we continue to navigate the uncharted waters of the COVID-19 pandemic.  How can an HOA best serve the members of its community, respecting the individual rights of its residents, while still doing everything possible to keep all members of its community safe and healthy?  

A Battleground in Florida

In July of 2020, a couple living in the Palmetto Place Condominiums in Boca Raton, Florida, tested positive for COVID-19.  The condo’s association had requested that any residents who test positive, alert the association promptly.  After receiving their positive test results, the couple sent notification, as they had been asked.  The couple states that, when they were asked to report their results, they were assured that neither their names nor unit number would be disclosed to the community.  They claim that they were then asked by the association to adhere to the suggested quarantine timeline, and not leave their home, unless medically necessary for the next 14 days.  In addition, they were informed that they were not to use the community’s common spaces until they were able to provide management with negative COVID tests.  Soon after, their key fobs that allow access to community areas, were deactivated, keeping them from entering areas like the community pool and gym, an act that the couple felt was the association’s way of forcing them to stay inside their home.  Days later, an email was sent to all community residents stating that the pool and fitness center would need to close temporarily, because two individuals had received positive tests and were refusing to quarantine.  While the communication that went out to community members did not disclose the names of the couple, or their unit number, the association had filed a civil complaint against the couple (in an attempt to enforce the quarantine) that did include their names.  The couple allege that, by naming them in the civil complaint, other residents were able to figure out that it was them to which the email referred.  The couple decided to pursue legal action and is currently suing the association on claims of false imprisonment, invasion of privacy and negligence, seeking to collect over 30,000 dollars in damages.  The association has refused to make any comments publicly about the matter, but interestingly, other residents were quick to come to the defence of the association.  Channel 12 News, a local Florida station, reported that a number of residents contend that the claims made by the couple are false and that the actions taken by the association were appropriate, given the situation and they feel safer for it.  "The building, similar to any community or workplace, will notify its members of a COVID-19 positive person. They do not send names of the positive individuals as it is against privacy guidelines. However, the community is alerted so that residents can properly safeguard themselves."

Taking a Side

When examining the situation from an outside perspective, we can attempt to appreciate both sides, yet it is very difficult to answer the question, who is right?  Should associations seek to uphold the privacy of its community members above all else?  Conversely, in a situation such as this, is the safety and overall well-being of the community, as a whole, paramount?  What obligation does an HOA have in matters like this?  What should, and should not be done?

The Expectation of Privacy

We operate within our daily lives with an understanding that we have a right to privacy.  We expect that those with whom we share our personal information, whether it be family, friends, employers, companies, or in this case, community associations, will keep it to themselves.  Typically the private information that an HOA has for its residents will be phone numbers, email addresses, etc and we expect that this information, though seemingly mundane, would be kept private.  Thus, someone living within a planned community would not expect that any other member would receive this information, let alone information regarding their health.  So, what obligation does the HOA have to keep private the positive test results of residents?  The answer is not completely clear.  Homeowners associations are not bound by the same HIPAA (Health Insurance Portability and Accountability Act) laws that keep hospitals, doctors, or other medical officials from disclosing such information.  While there is no specific law in place that would keep an association from informing the rest of the community that an individual (not mentioned by name) has received a positive test result, it is, no doubt, a slippery slope.  

The Obligation to Others

In the Boca Raton case, a number of residents of the condominium stated that they were very happy with the way that the association handled the situation, in that their health and safety was taken into consideration.  In receiving the information that members of their community had tested positive, they were better able to make informed decisions that could impact their health, and the health of their loved ones.  Within the governing documents of some associations, you may find verbiage that suggests the association is responsible for the safety of its residents.  To some degree, every HOA is responsible for keeping its residents safe.  However, this usually applies to things like maintaining playgrounds and equipment in community gyms, not to biological threats. However, we have never before found ourselves in the particular position of watching a global pandemic play out in front of our eyes.  In many places, HOAs have what is called a “fiduciary duty” to act in the best interest of its members. From a liability standpoint, the association needs to be sure that any action (or inaction) they take can be defended legally.  

What to Do?

Ultimately, the best course of action would be for the association to pursue the advice of legal counsel, making sure that this individual(s) is familiar with the laws and regulations of the city, county and state, as well as the governing documents of the community.  Specifics about your community would need to be considered.  If your community is made up of single family homes, all separate from one another, then the approach that you should take may look very different than a condominium community, or even town or row homes.  Consideration would need to be taken if your community boasts common spaces, such as parks, clubhouses, gyms and pools.  In short, there are an incredible amount of details that would need to be taken into consideration, and there simply may not be a clear “one size fits all'' answer.  There is no doubt that the outcome of this case will have a great impact on the way that property owners and associations approach similar situations moving forward.

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