Texas is one of the fastest growing states in the country, which has led to a dramatic increase in the number of new communities being developed. The progression of the COVID-19 pandemic, along with the resulting maze of CDC recommendations, local policies, and statewide orders, has left developers asking what they need to do the protect themselves and their communities.

The minimum recommended precautions to protect against negligence claims are discussed below.

Masks

As we highlighted in our previous communication, several counties and cities have adopted new emergency orders requiring “commercial entities providing goods or services to the public” to adopt a Health and Safety Plan. While the exact language varies from location to location, all of the orders require the Health and Safety Plan to require that, at a minimum, all employees or visitors to the entity’s business premises or facilities wear face coverings when in an area or performing an activity which will necessarily involve close contact or proximity to others. The Health and Safety Plan may also include the implementation of other mitigating measures designed to control and reduce the transmission of COVID-19. Many municipalities have confirmed that this requirement applies to community association common areas.

Once adopted, the Health and Safety Plan should be posted in a conspicuous location on association property.

Please consult with your attorney to determine what is needed to comply with your local order.

Amenities

As the phased reopening of Texas has continued, many of the amenities throughout our communities have been able to reopen at reduced operating limits and with new rules in place. Please note that developers and associations are not required to open their amenities and facilities. If an association chooses to reopen its amenities, the associations should adopt official rules that reflect any governmental requirements or CDC recommendations for use of similar facilities. These rules serve several important purposes: (1) they help establish a new “normal” for Board and the residents in the re-opening of the facilities, (2) they help manage occupancy limits, (3) they serve as restrictions that the Association can enforce should a resident fail to comply, and (4) they establish a process for the re-opening of amenities during COVID-19 that will help serve as a defense for the Board should a negligence claim be brought by a resident.  The rules should be adopted in an open meeting of the board of directors (even if the association is still under developer control) and recorded with the county. Rules that have not been formally adopted and recorded are unenforceable.

Waivers and Signage

Once appropriate rules have been adopted, corresponding warning signs should be clearly posted at the entrance to any reopened facilities. The warning signs should include the maximum occupancy of the facility, information on the restrictions and guidelines in place, and a warning that the failure to follow these guidelines could result in the closure of the facility. Rules contained in signage are not enforceable unless backed up by rules contained in a recorded policy.

Further, use of any association facility should be conditioned upon execution of a waiver wherein the users agrees to indemnify and hold harmless the association and developer (along with related entities) with respect to claims that arise out of use of the facility (i.e., claims that someone caught COVID-19 at an association pool). Please note, parents generally cannot waive claims on behalf of their minor children, and minors do not have capacity to enter into contracts. Therefore, with respect to minors, associations can only require parents to indemnify claims brought on behalf of their child.

Meetings

All meetings should be held virtually until social distancing is no longer necessary. The Texas Business Organizations Code allows non-profit corporations to hold virtual meetings even if the corporation’s bylaws do not. RMWBH is happy to assist our clients with technology and the set-up of virtual meetings. Please reach out to marketing@rmwbh.com for more information.

Offices

In Phase 3 of his Plan to Reopen Texas, the Governor has increased the occupancy allowance in offices while still recommending employers allow their employees to work from home when feasible. Among other things, employers should:

• Limit in-office presence to the greater of:
  • 10 individuals or
  • 50% of total office workforce
• Screen employees upon arrival (health records must be kept in a separate, confidential file)
• Implement social distancing
• Regularly and frequently clean surfaces
• Discourage sharing of workspaces or supplies
• Allow visits by appointment only

We urge all developers and associations in the affected counties and cities to reach out to your counsel if you have questions on any of the COVID-19 related rules and guidelines.