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Opening the Clubhouse and Other Amenities/Facilities

Guidance from MHCA regarding Governor Ducey's Executive Order on May 12th, 2020 regarding best practices for a safe re-opening of community common areas like pools, clubhouses, or gyms.
MHCA Coronavirus Update
Opening the Clubhouse and Other Amenities/Facilities
 
By: Melissa A. Parham, MHCA Attorney
 
The information provided in this document does not, and is not intended to, constitute legal advice.  Instead, all information herein is for general informational purposes only. Information in this document may not constitute the most up-to-date legal or other information. Readers should contact their own attorney to obtain advice with respect to any particular legal matter. This document does not create an attorney-client relationship between the reader and the authors of this document.
 
Recently MHCA has received questions from members about how to handle opening facilities other than the pool or gym (which were both addressed in specific guidance from Arizona's governor).  Members have asked whether they should open their clubhouses and allow residents to gather or hold activities there.  In one community, a group of tenants asked the park whether 10 tenants could gather in the clubhouse to play cards, and the park did not know how to respond.  Other communities have asked MHCA what “best practices” might be if they do open their clubhouses—i.e., does the park need to take users' temperatures?  Monitor how many people are using the facility?  Require masks?
 
In Arizona, the decision regarding whether and when to open these facilities is up to each community, taking into consideration the resources it has available (for example, employees, cleaning supplies, hand sanitizer/hand sanitizing stations).  Since Arizona's Governor has now allowed the vast majority of businesses and facilities to open, however, communities will likely have to open their facilities sooner rather than later in order to avoid “reduction in services” claims from tenants who might argue for reduced rent.  Various government and private sources have provided useful advice to consider when making this decision.    
 
Information from Arizona's Government.  Governor Ducey's “Stay Healthy, Return Smarter, Return Stronger” Executive Order, issued on May 12, 2020, provided some guidance for re-opening “non-essential” services.  That executive order is available here: https://azgovernor.gov/sites/default/files/executive_order_2020-36_return_stronger.pdf
 
Among other recommendations, the executive order states that all persons, when in public areas, should “maximize physical distance from others.”  It advises that “social settings where appropriate physical distancing is not practical should be avoided unless precautionary measures are observed and CDC guidelines are followed.”  It recommends that all businesses develop, establish, and implement policies based on CDC, Department of Labor, OSHA, and Arizona Department of Health Services guidance to “limit and mitigate the spread of COVID-19,” including:
 
  • Promoting healthy hygiene practices;
  • Intensifying cleaning, disinfection, and ventilation practices;
  • Monitoring for sickness;
  • Ensuring physical distancing;
  • Providing necessary protective equipment;
  • Allowing for and encouraging teleworking where feasible (for employees);
  • Providing plans, where possible, for employees to return to work in phases;
  • Limiting congregation of groups of no more than 10 persons when feasible and in relation to the size of the location.
 
In other words, communities may open facilities like the clubhouse, but should ensure that the above guidelines are followed to protect residents and attempt to avoid liability. 
 
Information from the Arizona Department of Health Services (“ADHS”).  ADHS's website has information for businesses preparing for reopening, which is available here: https://www.azdhs.gov/preparedness/epidemiology-disease-control/infectious-disease-epidemiology/index.php#novel-coronavirus-community.  Among other suggestions, ADHS advises all persons to do the following (I have added comments for manufactured housing communities to their advice):
 
  • Wash hands often with soap and water for at least 20 seconds, or if soap and water are not available, use an at least 60% alcohol-based hand sanitizer (communities should consider providing hand sanitizer stations at facilities, particularly where soap and water are not available);
 
  • Avoid touching your eyes, nose, and mouth with unwashed hands (communities should consider posting signs about this and how COVID-19 spreads);
 
  • Avoid close contact with people who are sick; stay home when you are sick (communities should consider posting signs to this effect in common areas);
 
  • Cover your cough or sneeze with a tissue, then throw the tissue in the trash;
 
  • Consider wearing cloth face coverings in public settings where other physical distancing measures are difficult to maintain (communities could consider requiring cloth masks at facilities where people might congregate, like the clubhouse or billiards room);
 
  • Clean and disinfect frequently touched objects and surfaces using a bleach and water solution (0.1% solution; 1:50 dilution) or disinfectant with a label that says “EPA approved” for killing bacteria and viruses; always follow directions on product labels (communities should review the EPA list of chemicals known to kill COVID-19, available here: https://www.epa.gov/pesticide-registration/list-n-disinfectants-use-against-sars-cov-2, and ensure that they have such products to clean and disinfect facilities before opening);
 
  • Avoid areas where people congregate if you are at higher risk for severe illness, including adults 65 or older and people of any age who have serious underlying medical conditions (communities should consider posting signs to this effect in common areas).
 
For businesses, ADHS's suggestions are geared towards the employer/employee relationship.  But, some of that information is useful for manufactured housing communities considering opening amenities:  
 
  • Maintain a flexible response plan and revise as needed for:
    • Varying levels of disease severity in the community/local area (for example, if there are increasing illnesses, hospitalizations, and deaths in the area, consider closing again);
 
  • Impact of disease on employees (and residents) who are more vulnerable and may be at higher risk for adverse health complications (for example, a 55+ community might take greater precautions than an all-ages community)
 
  • Implement daily employee health checks and perform them in a private area; any employees with symptoms or who become ill at work must immediately be separated from others and sent home;
 
  • Employees should wear a cloth face covering if possible to contain respiratory droplets and protect coworkers and the public, while also continuing to physically distance;
 
  • Increase hygiene and disinfection of frequently touched objects and surfaces.
 
            Information from the Federal Government.  The United States Centers for Disease Control and Prevention (“CDC”) have issued guidance specific to a variety of situations.  This includes guidance for “Retirement Communities,” which includes 55+ communities; for “Shared & Congregate Housing,” which includes but is not limited to apartments and condominiums; for “Businesses and Workplaces”; and for “Cleaning & Disinfecting.”  Communities should consider reviewing each applicable CDC guidance, available here:  https://www.cdc.gov/coronavirus/2019-ncov/community/index.html.
 
            With regard to “recreational areas” such as “activity rooms,” the CDC's Guidance for Shared or Congregate Housing states:
 
  • Consider closing activity rooms or restricting the number of people allowed in at one time to ensure everyone can stay at least 6 feet apart;
  • Activities and sports (e.g. ping pong, basketball, chess) that require close contact are not recommended  
            With regard to laundry rooms, the same guidance suggests:
  • Maintaining access and adequate supplies to laundry facilities to help prevent the spread of COVID-19;
  • Restricting the number of people allowed in the laundry room at one time to ensure everyone can stay at least 6 feet apart;
  • Providing disposable gloves, soap for washing hands, and household cleaners and EPA-registered disinfectants for residents and staff to clean and disinfect buttons, knobs, and handles of laundry machines, laundry baskets, and shared laundry items;
  • Posting guidelines for doing laundry such as washing instructions for handling dirty laundry (available here: https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/disinfecting-your-home.html)
Regarding common areas generally, the CDC suggests:
  • Consider multiple strategies to maintain physical distance between everyone in common spaces of the facility;
  • Consider canceling all public or non-essential group activities and events;
  • Offer alternative methods for activities and social interaction such as participation by phone, online, or through recorded sessions;
  • Arrange seating of chairs and tables at least 6 feet apart during shared meals or other events;
  • Alter schedules to reduce mixing and close contact, such as staggering meal and activity times and forming small groups that regularly participate at the same times and do not mix;
  • Minimize traffic in enclosed spaces;
  • Ensure social distancing can be maintained in shared rooms like television, game, or exercise rooms;
  • Make sure shared rooms in the facility have good air flow from an air conditioner or opened window;
  • Consider working with building maintenance staff to determine if the building ventilation system can be modified to increase ventilation rates or the percentage of outdoor air that circulates into the system;
  • Clean and disinfect any shared areas (like laundry facilities, shared kitchens, exercise rooms, clubhouses) and frequently touched surfaces using EPA-registered disinfectants more than once a day if possible
            Key Take-Aways from Government Guidance.  The key takeaways for opening community facilities are:
  • Post signs warning users of COVID-19, the risks, and the symptoms;
  • Post signs warning users to stay at least 6 feet away from others;
  • Post signs limiting the number of people who may use the facility at a time (consider the size of the facility, but limiting to no more than 10 seems generally accepted as long as the facility is large enough to accommodate 10 people spaced at least 6 feet apart);
  • Encourage handwashing; if soap and water are not available, set up hand sanitizer stations with hand sanitizer that has at least 60% alcohol; post signs regarding handwashing and hand sanitizing;  
  • Ensure that facilities are cleaned regularly—after every use if possible—with disinfectants known by the EPA to kill COVID-19;
  • Limit the number of simultaneous users in a facility such that every person using the facility can stay least 6 feet away from others.  Consider limiting facilities to no more than 10 persons at a time;
  • Ensure that indoor facilities have good ventilation/air circulation;
  • If the facility has furniture, ensure all seats are at least 6 feet apart;
  • If the facility has tables with chairs, ensure that all tables are at least 6 feet apart in addition to placing chairs at least 6 feet apart;
  • Consider requiring cloth face coverings;
  • Ensure employees are health screened on a daily basis
Communities should also consider posting signs at all facilities and amenities that use of the facility or amenity is at the user's own and sole risk.  Signs from the CDC covering some of the above items are available here: https://www.cdc.gov/coronavirus/2019-ncov/communication/print-resources.html?Sort=Date%3A%3Adesc.  And, from a liability perspective, communities should document all of the steps they have taken to keep employees and residents safe from COVID-19!  Creating a written protocol and noting that it has been complied with may be a good idea, along with photographing the setup of rooms and posted signs.
 
NAA “Best Practices.”  Finally, on May 6, 2020, the National Apartment Association released a document discussing “Best Practices” for “Re-Opening Office and Amenity Spaces,” which you can read here: https://www.naahq.org/sites/default/files/naa_bestpractices_reopening_office_and_amenity_spacesfm_-_ab_comments_05.06.pdf.  With regard to the clubhouse, like government guidance, NAA suggests limiting occupancy for resident events to fewer than 10 people at a time and holding “virtual events.”  They suggest reducing operating hours so proper cleaning can be done, and advise that “[a] strong focus by staff should be placed on sanitizing work areas, public areas, and commonly touched places (door handles, elevator buttons, etc.) and placing hand sanitizers in common areas.”  And, they suggest opening windows to improve ventilation, removing objects in common areas like coffee creamer containers, and if offering food or drinks, ensuring that they are pre-packaged.  Their “Best Practices” guidance contains a number of good suggestions for dealing with different types of amenities, posting signs, considering waivers, and the like. 

            As always, MHCA will continue to keep its members updated as soon as it learns anything further. 

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