By Javier Zayas-Bazan, Attorney at Law (firstname.lastname@example.org)
Are Condominium Residents Obligated to Notify Associations of a Positive Covid-19 Diagnosis?
There is no clear legal requirement that a condominium resident must notify his or her condominium administration of a Covid-19 diagnosis. However, many condominium administrations are encouraging residents to notify them if they test positive. The apparent purpose of such requests is to initiate certain operating and notice protocols. However, Associations must be careful in how they handle such information.
Privacy Protections under Florida Law
If a resident comes forward and notifies the Association of a positive Covid-19 diagnosis, then the information regarding the resident’s health condition may be protected under the Florida Information Protection Act of 2014 (501.171), which states that certain information obtained and stored by a “covered entity” must be protected. Such protected information includes “any information regarding an individuals medical history, mental or physical condition, of medical treatment or diagnosis by a health care professional”.
The definition for “covered entity” under FIPA applies to corporations, associations, and other commercial entities. Condominium associations are generally incorporated as for-profit or non-profit corporations. Therefore, condominium associations are “covered entities” for the purpose of the Florida Information Protection Act of 2014 (FIPA). While FIPA is generally intended to protect electronically stored information, the overarching intent of FIPA is to protect sensitive information. Associations and management companies may be liable under FIPA for disseminating protected information without the consent of the pertinent party, or for leaking or otherwise mishandling the protected information.
The Condominium Act
The Condominium Act, under 718.111(12)(c)(1)(3)(a) protects the medical records of unit owners from record inspection, but it is not clear that such protection extends to disclosures by unit owners of information related to their health status. Also, it does not appear to apply to tenants as the above referenced statute does not make reference to tenants.
Privacy Protections under HIPPA
Another law that frequently comes to mind when considering the confidentiality of health and diagnostic information is the Health Insurance Portability and Accountability Act (HIPPA) federal law. However, the privacy rule under HIPPA regulates patient confidentiality in the healthcare context not in condominiums.
The “covered entities” subject to HIPPA regulation are health plans, health care clearinghouses, and health care providers. There are some exceptions for applying HIPPA to non-health care providers, but generally, there is no indication that HIPPA applies to condominium associations who receive information about a resident in the condominium property testing positive for Covid-19 or any other ailment.
Limited Consent to Disclose Health Condition and Identifying People and Areas at Risk
A resident may, but is not obligated to, give consent to the Association issuing notice that identifies the resident and his or her health condition, thus waiving any privacy protections the person may have under applicable law. However, such consent must be in writing to protect the interests of the Association and consenting party. Moreover, such consent should be limited to facilitating the identification of people with whom the infected resident had been in contact with during the prior 7-14 days.
Purpose of Limited Consent to Protect Health, Safety and Welfare
For example, limited consent may be given to share the identity of the infected resident with security personnel in order to review surveillance to track the movement of the infected resident throughout the community and determine who was in close physical proximity with the infected resident and what specific common areas were exposed. The CDC refers to this process as contact tracing and it is a way of mitigating viral exposure.
Any personnel receiving the protected information should sign non-disclosure or confidentiality agreements if not already incorporated into the employment agreement or service agreement.
Association representatives should be mindful of FIPA when handling communication of such information and not disclose the identity of the infected resident to any person identified as having been in relatively close contact with the infected resident. One of the purposes of the foregoing process is to allow the people who have been in contact with the infected resident to be notified in order follow CDC self-isolation and quarantine guidelines. These potentially at-risk people do not need to know the identity of the infected resident to follow the relevant official guidelines.
When a Covid-19 Positive Resident Does Not Want to be Identified
If a resident notifies an association staff or board member of his or her Covid-19 diagnosis and does not consent to anyone else other than the recipient knowing, the recipient should contact the association’s attorney for counsel. The association should, as a matter of policy, inform its agents and personnel that they are authorized to contact its legal counsel in such cases. Disclosure to the attorney is protected under attorney-client confidentiality. There should be no disclosure to anyone else until legal counsel advises. The disclosure may not be imputed to anyone else in the staff or administration without the consent of the infected resident.
Promulgate Guidelines and Obtain Compliance Assurances
In all instances where an association receives notice of a resident testing positive, the association should communicate CDC and other appropriate prevailing health and safety guidelines to the infected resident and potentially affected parties. The association should also obtain reasonable assurances from the infected resident that he or she is abiding (and will continue to abide) by the CDC and other appropriate guidelines.
Are Associations Obligated to Give Notice to the Community?
General Notice to the Community of a Positive Covid-19 Case
There is no statutory requirement for the Association to give general notice that a resident has tested positive for Covid-19. However, under the Condominium Act and most association governing documents, associations have an affirmative duty of reasonable care to protect the health, safety and welfare of the residents and visitors of the condominium community. If a resident notifies the association that he or she has tested positive for Covid-19, then the association may have a common law duty to notify the community (without identifying the sick resident) if it may improve prospects for the health, safety and welfare of the community.
Pros and Cons of General Notice
One argument in favor of notification to the community is that the notification could cause residents to be more observant of social distancing and other protective guidelines. It may also be likely to lead to less overall movement throughout the community. The argument against notice is that it might raise unnecessary alarm among residents that should be observing guidelines to begin with. However, most people are already alarmed and reasonable alarm may heighten precautionary measures that could save lives.
General Notice to Employees
General notice to the community includes employees. However, the association must be careful not to disclose so much information that it may imply the identity of the infected resident. Employee-specific notice should be implemented to effectuate specific operating protocols such as adding common area cleaning intervals and increasing protective measures among employees.
Engagement of Legal Counsel
Any general association notice regarding a resident testing positive for Covid-19 should be drafted or reviewed by legal counsel. Its purpose should be to inform the community in order to reinforce if not heighten overall precautionary measures and demonstrate order and control. The notice can highlight that the association is undertaking (and will continue to undertake) systematic cleaning and hygiene programs. The notice can also communicate that the Association has received assurances from the infected resident that he or she is following self-quarantine guidelines. Again, the goal of the general notice is to inform the community in order to protect residents through reinforcement of key protective guidelines and heighten collective caution.
The notification issue has become one of the most important challenges confronting condominium administrations during the Covid-19 crisis. Whether, when, and how to give notice may have legal implications. Managers and boards should be cautious and not handle notice issues without legal counsel.
The notice and disclosure issues in this article do not relate to the employer/employee context. The purpose of this article is to address the notice issues that arise when a resident is known to be infected in a community.
DISCLAIMER: This article is intended to serve as informational only. It is not intended to serve as legal advice for any particular community association. Legal advice should be based on the facts and circumstances attributable to each matter and requires a case-by-case analysis. If you have any legal questions about your community, you should consult your community’s legal counsel. You may also contact the author by email at email@example.com.
Javier Zayas-Bazan is a member of the Florida Bar and the Managing Member of Zayas Bazan Law PLLC (http://www.zayasbazanlaw.com) 1110 Brickell Avenue, Suite 504, Miami, FL 33131. He is also a Florida licensed community association manager.
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