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Latest COVID Update 5/1/20

What to Expect/Thoughts on Planning to Open Facilities
MHCA Coronavirus Update
Recent Executive Orders and Beginning to Plan for Reopening Facilities Safely and Consistent With Government Orders
 
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.
 
MHCA is aware that Coronavirus is having a significant impact on MHCA's members, including on their health, their finances, and their operations.  As always, MHCA will do its best to keep its members updated with everything it knows.
 
Update on Arizona Governor's Executive Orders and Plans.  On April 29, 2020, Arizona Governor Doug Ducey issued an executive order (the “Order”) amending the previous “Stay Home, Stay Healthy, Stay Connected” order.  In the Order, the Governor states that Arizona “must continue its efforts by further limiting potential exposure through a policy of physical distancing while maintaining social connectedness.”  The Order keeps in place most of the requirements in the previous “Stay Home, Stay Healthy, Stay Connected” order, except:
 
  • Effective May 4, 2020, non-essential retailers whose businesses involve the sale of goods may operate and offer goods through delivery service, window service, walk-up service, drive-through service, drive-up service, curbside delivery, or by appointment, provided they “establish and implement protocols and best practices for businesses to address COVID-19 as outlined in this order.”
 
  • Effective May 8, 2020, non-essential retailers whose businesses involve the sale of goods may “open, operate and offer goods for sale to customers in their stores provided they establish and implement protocols and best practices for businesses to address COVID-19 as outlined in this order.” 
 
  • To operate under the Order, retailers must implement rules and procedures that facilitate physical distancing and spacing of individuals “of at least six feet.”  It appears that they likely must also implement “sanitation measures established by the United States Department of Labor or the Arizona Department of Health Services.” 
 
  • Areas “where people may be inclined to congregate in an enclosed or confined area such as indoor shopping malls” must continue to limit operations.  Such retailers “may operate through delivery or curbside service or appointment only.”
 
You can review the Order here: https://azgovernor.gov/sites/default/files/eo_2020-33_0.pdf
 
            The Governor's office also issued a “Gradual Step-By-Step Plan for Reenergizing Arizona.”  A copy of that plan is available here: 
https://azgovernor.gov/sites/default/files/return_stronger-2.pdf
 
            This plan (the “Plan”) includes the above-referenced May 4 and May 8 dates regarding non-essential retail, and the following:
 
  • Beginning May 1, 2020, elective surgeries may resume at hospitals and surgery centers.
 
  • The Governor has set a “goal” of resuming dine-in operations “in May,” with “guidance being developed in coordination with public health officials and industry leaders to be provided in the days ahead.”
 
I have received several e-mails from clients asking whether swimming pools are permitted to re-open.  The Governor's office has not issued anything allowing public or semi-public pools (like those at manufactured housing and RV communities) to re-open.  The Plan states that further guidance will be issued based on CDC and health expert recommendations through May and June, with advance notice provided.  It also states that “public health” will come first, with “increasing tests, following the facts, and continuing physical distancing.” 
 
On May 1, 2020, the Governor's office released “Guidance for Retail,” available here: https://azgovernor.gov/sites/default/files/guidance_for_retail.pdf.  This guidance sets forth protocol that customers and businesses should follow when visiting retail establishments.  Among other requirements, the guidance provides that customers should stay 6 feet away from others, cover their mouths with cloth face coverings in public, visit stores during hours when fewer people will be present, disinfect shopping carts, use touchless payment if possible, use hand sanitizer and refrain from touching their faces, and wash their hands with soap and water for at least 20 seconds upon returning home.  Retail establishments, too, are to facilitate customers in following these guidelines—they are to maintain physical distancing, operate at reduced capacity, limit areas where people can congregate, implement “comprehensive sanitation protocols,” continue to provide options for delivery or curbside service even if they permit entry into the store, close areas that do not provide for appropriate physical distancing, implement symptom screening for employees, and consider offering cloth face coverings. 
 
Note that the April 29, 2020 Order, aside from the changes discussed above regarding non-essential retail, still requires all Arizonans to “limit their time away from their place of residence or property” except to participate in “Essential Activities” and utilize “Essential Businesses,” to care for family members, friends, or pets, to engage in essential health and safety activities, to engage in outdoor exercise activities, engage in constitutionally protected activities if physical distancing is observed, and to “visit retailers permitted to operate pursuant to this order.”
 
            Accordingly, semi-public swimming pools must, at present, remain closed.  Further, it appears based on the Order that most community amenities that would allow people to congregate, and that are not for the purpose of engaging in Essential Activities, must also remain closed.  This would include, for example, community gyms, clubhouses, billiards and game rooms, woodshops, and the like. 
 
            What to Expect/Thoughts on Planning to Open Facilities.  The Governor's step-by-step Plan indicates that before other facilities will be permitted to open, COVID-19 testing will be increased in Arizona, businesses and citizens will be given time to plan and adjust, and further guidance will be released in May and June. 
 
            In planning to reopen community amenities, parks should consider what will likely be required with regard to physical distancing and sanitation.  Parks should ensure that they have cleaning supplies known to kill COVID-19 on hand and should consider installing hand sanitizer dispensers around common area facilities.  Parks should begin planning to set up their facilities such that congregation of large groups is discouraged or prohibited.  For example, consider setting up the pool area such that each pool chair is at least 6 feet apart.  Consider limiting the pool to 10 users at a time and limiting the time that each user may spend in the pool so that all residents have an equal opportunity to use and enjoy the pool.  Unfortunately, some of these possible restrictions will require staff time and monitoring, so parks might begin considering how they will staff facilities to ensure that tenants do not congregate en masse.  Parks should also begin to consider what signs they will post with regard to hand washing, hand sanitizer, limiting congregation, staying 6 feet apart, and the like.  Parks might consider limiting the opening hours of facilities to allow for extra time for cleaning and sanitation in accordance with CDC and Arizona Department of Health Guidelines.    
 
            Many retailers are considering having masks on hand to provide to customers.  Communities, too, might consider having masks on hand to distribute to those using park amenities. 
 
            In summary, to avoid legal liability and to avoid contributing to the spread of disease, communities should ensure that they follow all guidance from the state and federal government regarding what facilities may be open, and how business should be conducted.  Obviously it is legally prudent not to open facilities until guidance from the Governor's office indicates that this may be done.  Violation of any of the Governor's executive orders is a misdemeanor, and this can be explained to tenants who question the closure of any facilities.  Once official guidance regarding re-opening facilities is provided, it should be closely and carefully followed.  If communities simply open up their facilities, allow tenants to congregate, and do not bother with cleaning and sanitizing more often, then tenants who become infected may sue the community for negligence.  These issues must be kept in mind while devising a plan to re-open.

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