Federal Coronavirus Legislation and Enforcing Your COVID-19 Protocols
by DONNA DIMAGGIO BERGER
Contact: dberger@beckerlawyers.com
I hope this CALL Alert finds each of you in continued good health.
The extent to which this pandemic has and will impact our private residential communities will not be known for some time. In the interim, we are urging our CALL members to take all recommended precautions to minimize the potential for community spread in their associations.
It is not surprising that some of your residents are pushing back against the COVID-19 protocols you’ve put in place for their protection. As the weeks go on, you can expect even more violations as residents grow even more restless. However, it is important to remember that any individual who continues to use closed common areas, refuses to adhere to social distancing or enhanced sanitization guidelines or who has been ordered to self quarantine but refuses to do so is not committing a trivial violation. That resident is potentially putting his or her neighbors at serious risk of contracting COVID-19. As such, boards must react swiftly to such violations.
If you have individuals who have arrived in your community from a hotspot where there has been substantial community spread who do not adhere to the 14-day quarantine order, the penalties can be quite severe. Any person who violates any isolation or quarantine directed by the Department of Health commits a misdemeanor of the 2nd degree punishable by imprisonment not to exceed 60-days and a fine of up to $500. It is the duty of every state and county attorney, sheriff, police officer and other city and county officials to enforce the DOH’s quarantine order. That being said, some local officials are stringently enforcing these orders while others are not. In addition, you may have individuals who are not subject to a quarantine order but have nevertheless jumped the pool fence to continue accessing your closed pool or decided to keep using the fitness room. All of these violations require swift action on your part.
Please click here to read my latest column in the Miami Herald on enforcing your COVID-19 protocols. If you are experiencing violations of your COVID-19 protocols please contact me immediately to discuss your options.
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Many of you have been following the COVID-19 legislation Congress is passing and wondering whether the relief being offered will apply to your association.The Coronavirus Aid, Relief & Economic Security Act (CARES) is a $2 trillion relief package which allocates $350 billion to help small businesses keep their workers employed throughout this pandemic. The Small Business Administration (SBA) will provide loans of up to $10 million which may be forgiven provided workers stay employed through the end of June known as the Paycheck Protection Program (PPP). The purpose for these loans is to allow small businesses to fund payroll and to make their mortgage, lease and utility payments. Unfortunately, community associations do not appear to currently be eligible for these payments as they do not fit within any of the eligible categories:
- Small Businesses with fewer than 500 employees
- 501(c)(3) organizations (charitable, religious or educational institutions)
- 501(c)(19) organizations (veterans)
- Tribal businesses
- Individuals who operate a sole proprietor
- Individuals who are independent contractors
There is confusion in some quarters about the difference between a not-for-profit corporation and a nonprofit. Community associations fit within the former category as they are not-for-profit corporations.However, community associations could qualify for Economic Injury Disaster Loans (EIDL) which are low interest loans of up to $2 million with principal and interest deferment at the Administrator’s discretion and are available to pay expenses that could have been met had the disaster not occurred and include payroll and other operating expenses. Obtaining this loan may require membership approval so speak to your Becker attorney when applying for same.
In addition to helping businesses stay afloat, CARES will provide most individuals earning less than $75,000 (based on either one’s 2018 or 2019 tax return) a one-time cash payment of $1,200 with married couples each receiving a payment. Families would also receive $500 per child. People who receive Social Security benefits but do not file tax returns are still eligible for these payments. Individuals who are out of work will receive an additional $600 per week from the federal government on top of the base amount that the State of Florida provides. CARES also creates a new, temporary Pandemic Unemployment Assistance program through the end of this year to help people who lose work as a direct result of COVID-19 and provides an additional 13 weeks of unemployment insurance. This monetary relief should help ease the financial uncertainties that many of your residents are facing.
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The Families First Coronavirus Response Act (“FFCRA”) was signed into law on March 18, 2020 and became effective on April 2, 2020. Among other items, this legislation provides paid sick leave and expanded paid leave under the Family and Medical Leave Act (FMLA). This legislation:Covers all private employers with fewer than 500 employees. Including community association employers that have fewer than 500 employees.
- Covers both full and part-time employees. Full time employees receive sick leave of up to 80 hours. Provides part-time employees with paid sick leave equal to the number of hours the employee works on average over a 2-week period.
- Provides that employees may immediately take paid sick leave regardless of the length of employment.
- Provides that employees may take expanded leave under the FMLA provided the employee must have worked for an employer for at least 30 calendar days.
- Protects employees who are taking paid sick leave because they have been diagnosed with COVID-19, experiencing symptoms and seeking a diagnosis, experiencing symptoms substantially similar to those exhibited by COVID-19 or who are quarantined by providing them with a maximum of $511 per day or $5,110 in total.
- Protects employees taking paid sick leave to care for a family member who is sick or quarantined or to care for a child whose school or place of care is closed by providing them with a maximum of $200 per day or $2,000 in total.
- The FFCRA requires a community association to provide employees leave to care for a child who is not sick. FFCRA requires up to 12 weeks of paid leave to care for a child under 18 years of age if the child’s school or place of care has been closed. It does not matter whether the child is sick. The first 10 days of leave are unpaid, but the employee can use any accrued paid leave during that time. The remainder of the leave is paid at 2/3 of the employee’s regular rate of pay, not to exceed $200 per day or $10,000 in total.
- Presently there is no relief for community associations with fewer than 50 employees. However the Secretary of Labor under FFCRA has the authority to exempt small businesses with fewer than 50 employees when compliance with FFCRA would jeopardize the viability of the business.
- Employers who pay leave under FFCRA will be reimbursed through a payroll tax credit.
- It is unlawful for an employer to retaliate against an employee who takes paid sick leave in accordance with FFCRA or who files a complaint under FFCRA. The penalties are similar to those provided for under the Fair Labor Standards Act which generally provides for lost wages, liquidated damages and attorneys’ fees and costs to a prevailing employee.
So many important aspects of our daily lives have changed since Governor DeSantis first declared a State of Emergency on March 9, 2020 and a national State of Emergency was declared on March 13, 2020. The coming weeks will continue to present their challenges but we are here to help your board and management professionals.For our most up to date information please visit us at www.beckercovid19.com.
DONNA DIMAGGIO BERGER
Contact: dberger@beckerlawyers.com
Donna DiMaggio Berger is a member of the College of Community Association Lawyers (CCAL), a prestigious national organization that acknowledges community association attorneys who have distinguished themselves through contributions to the evolution or practice of community association law and who have committed themselves to high standards of professional and ethical conduct in the practice of community association law. Ms. Berger is also one of only 129 attorneys statewide who is a Board Certified Specialist in Condominium and Planned Development Law.
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Date: Thursday, April 23, 2020
