With coops, condos and HOAs sheltering in place because of the Coronavirus, boards and their management are faced with many challenges. In these difficult times, it is possible that building staff may become ill and can’t be replaced in a timely way. Even when regular staff is in place and healthy, people may want to volunteer to help or just get out of their apartments. What’s a board to do?
A significant consideration is potential liability. When a person volunteers, they can expose an association to liability to others. They also expose themselves to possible liability and create a situation where the association may be liable to the volunteer.
If your association is going to allow volunteers or, because of the unprecedented circumstances we all find ourselves, has no choice but to allow volunteers to pitch in, the first thing you should do is find out if the association’s insurance policies cover the volunteer and the association for what may happen during or because of the volunteer work. For example, what if a volunteer has the virus and assists as a doorman or porter, or delivers packages to apartments, and infects other residents while volunteering. What if the volunteer is negligent in some way and causes property damage. The association should make sure that insurance is in place to protect all involved. Your insurance professional should have the answer as to whether your insurance covers the volunteer and the association and whether there are any exclusions or limitations. If insurance is not in place, perhaps you can procure adequate insurance before allowing volunteer service so that everyone is protected.
Another consideration is having the volunteer sign an indemnification and waiver agreement under which the volunteer agrees to indemnify and defend the association and waives claims against the association. This would protect the association but not the volunteer. The agreement should spell out that the person is a volunteer and that they are volunteering to perform services which does not create an employment arrangement and there is no expectation of renumeration for the volunteer work. If you are a union building and the person is volunteering for a task that a union employee performs, you ought to confirm with the union representative that there is no issue with the union.
If your association is in desperate need of building volunteers and has no choice but an “all hands on deck” approach, you should do your best to assure that volunteers are safe and that your community is safe from the volunteers. This is quite a challenge with the virus which sometimes is symptomless. It seems reasonable to inquire of volunteers as to whether they have any symptoms, have been tested or have been exposed to someone who has tested positive for the virus or has symptoms of the virus. The association must be careful to treat all people equally and not discriminate in questioning or making determinations as to who may volunteer and who may not. Otherwise, unfortunately, you may be inviting a lawsuit in our litigious society.
In sum, it seems better for community associations to be wary before allowing volunteers to perform staff functions. However, in a pinch, consider insurance, a volunteer agreement and take other reasonable measures to protect the volunteer, the association and your community members. It is best to follow the guidance of your property manager, attorney and other professionals when making decisions like this one.
