We are thinking about taking temperatures of members and vendors this fall at our chapter houses. For members, it would be upon move-in and then perhaps once per week when they have to update their Attestation to Good Health form. For vendors (housekeeping, kitchen staff, outside maintenance), it would be each time they came to work (daily). Is there a liability involved with this?
There is a section of our To Consider Before Reopening resource which touches on Testing (page 9). You are welcome to take temperatures as long as you are following local health guidelines. We have also seen some arguments in favor of other symptoms being more important to track than fevers, detailed in these articles:
- Temperatures checks alone are not effective in stopping COVID
- At least a quarter of COVID-19 patients don’t develop fevers
Many companies are using a checklist of some sort – here is a good example (MJ’s guide to creating return to work plan is here, much of which can be easily transferable to the chapter house). Liability and negligence might come into play if you did not follow through with promised health and safety measures or knowingly expose those in your care; for example, you require temperature checks daily or weekly, but stop doing so halfway through the semester or do not act on results received.
Because of COVID-19, we cannot fill our chapter house to normal capacity, making it cost-prohibitive to hire a chef or kitchen service. Is there anything we can do that will allow members to use the commercial kitchen? Could we do waivers or require them to have their own renters insurance?
In “normal times,” we strongly discourage allowing members or anyone other than trained staff use the commercial kitchen. We are concerned from a safety standpoint because there are so many opportunities for injury in any kitchen and particularly a commercial kitchen where the equipment can be even more difficult to operate without training. If members are preparing food for other residents, it also can create problems with Workers’ Compensation insurance – it can make it difficult to be able to determine if an injury occurred when the member was working or if it happened during time when she was just a resident.
That’s all of the risk management “stuff.” There isn’t anything specifically in the insurance policies that actually specify this however, so there aren’t any exclusions in the policies that would create coverage problems if you did ultimately decide that it is worth the liability that you might take on to allow members to access the commercial kitchen to prepare foods for themselves. This is an unusual year, and we understand that you will need to get creative in order to make things work. We would recommend that, if possible, you should still have some controls in place for the commercial kitchen – such as removing equipment that they could really do without, such as the commercial stand mixer, deli slicer or other items that wouldn’t be included in a residential kitchen, and locking the kitchen overnight if possible, especially if there is another corner that you could tuck a refrigerator and microwave. You’ll also need to impress upon the residents that it will be up to all of them to maintain safety in the kitchen, just like it will be up to all of them to keep everyone safe from COVID-19.
Concerns with mandating tests are more practical and logistical than insurance-related, as requiring testing is not a guarantee and not thoroughly enforceable on a wide scale. Further, it likely would involve coordination and financial investment to provide and/or require testing before returning to campus at this point. We maintain that it would be difficult to prove negligence in the event one of your members or tenants contracts the virus, even if you did not provide testing. Negligence might come into play if you did not follow through with promised health and safety measures or knowingly expose those in your care; for example, you require testing but do not act on results received. At this time, there is not a virus exclusion on the General Liability policy should this coverage need to come into play.
Unfortunately, this, like so much when it comes to this global pandemic, varies wildly from location to location based on the availability of testing. Even when tests are available, we are hearing that in many places it is taking more than a week to get results. If testing isn’t available for students on campus or nearby, it also may not even be accurate by they time that they move in. For example, if they take the test in their hometown, it only reflects their status at that moment, and they could contract the virus in their travels to campus or even their first night in town. If they take a test five days before they return to school, they may not have the results once they get back.
It is helpful to encourage tests if members feel that they may have been exposed and stress to all of them that it is important that they maintain social distancing when possible and be truthful if they begin to experience symptoms.
Whether or not to quarantine sick members at the chapter house is up to each individual chapter and house corporation to decide based on their organization’s guidance, their campus and local health department guidance, and the structure and layout of their individual facilities.
We have created some questions to consider in making the decision whether or not to quarantine sick members at the chapter house. Our general stance is that members should quarantine somewhere other than the chapter facility, as a communal living space presents difficulties in quarantining properly. We have heard of some situations where the local health officials are recommending members stay in chapter facilities as needed, but typically the university can provide a better alternative for quarantining.
Kappa Alpha Theta created this housing and safety plan that they graciously agreed to share, which includes a simple approach and expectations should a member be symptomatic or test positive. Each sorority is using a slightly different philosophy, but many general principles are mutual.
If a location does choose to quarantine ill members, this is the CDC guidance for quarantining sick members:
- All household members should educate themselves about COVID-19 symptoms and preventing the spread of COVID-19 in homes.
- Clean and disinfect high-touch surfaces daily in household common areas (e.g. tables, hard-backed chairs, doorknobs, light switches, phones, tablets, touch screens, remote controls, keyboards, handles, desks, toilets, sinks)
- In the bedroom/bathroom dedicated for an ill person: consider reducing cleaning frequency to as-needed (e.g., soiled items and surfaces) to avoid unnecessary contact with the ill person.
- As much as possible, an ill person should stay in a specific room and away from other people in their chapter.
- A designated individual should be the caregiver who can provide personal cleaning supplies for an ill person’s room and bathroom. These supplies include tissues, paper towels, cleaners and EPA-registered disinfectants.
- If a separate bathroom is not available, the bathroom should be cleaned and disinfected after each use by an ill person. If this is not possible, the designated caregiver should wait as long as practical after use by an ill person to clean and disinfect the high-touch surfaces.
- All household members should follow home care guidance when interacting with persons with suspected/confirmed COVID-19 and their isolation rooms/bathrooms.
As always, we encourage you to check with your national organization’s guidelines regarding quarantining members.
We have created an entire resource titled “What To Consider Before Re-Opening.”
Most importantly, Chapter Advisors need to be in communication with the national organization Headquarters and their contacts at their university. The university will have to lay out explicit instructions for reopening any residential spaces, so it is important that you are continually in contact with them to determine what your facilities and chapters need to be doing to prepare.
Chapter Advisors will also want to open communication channels with their House Corporations regarding any changes that they see to how the house will need to operate in the fall (regarding food, sleeping arrangements, etc.) and how they will handle lease payments if significant numbers of members do not return in the fall. In addition, Chapter Advisors/Chapter Advisory Boards will need to communicate openly with their associated House Corporations to ensure that chapter members are following social distancing guidelines, from both the university and the CDC. There will likely need to be significant communication with the members (and their parents) about what steps the chapters and House Corporations are taking to adhere to CDC guidelines, as well as what consequences will be in place for those who refuse to follow the guidelines set out by the university and the CDC.
What legal liability does a chapter/house corporation have if a member is diagnosed with the COVID-19 virus and is allowed to live in the chapter house under a quarantine or isolation room?
Legal liability exists when:
- The wrongdoer (chapter house or corporation) is found guilty of “negligent conduct” meaning they breached a duty owed to the injured party
- The injured party suffers actual damages such as getting ill with the virus
- The wrongdoer’s negligent conduct is the proximate cause of the injury or damage
What actions during the COVID-19 crisis could possibly lead to the insured (chapter and/or house corporation) being found legally liable for an injury from the virus? Before we lay out some examples it is always important to remember that society and the courts generally only require that a person or entity act “as a reasonable and prudent person” and using their best, and most informed, judgement act accordingly.
Examples might be:
- Allowing an employee who is known to be infected with the virus to continue working
- Forcing an employee to continue to work in a chapter house where there are resident members who are ill and isolated at the house
- Failure to adhere to required health and prevention guidelines
- No efforts to educate your employees and/or members on the health and prevention guidelines
- Remaining open following an order by a civil authority to close
- Indiscriminate application of rules and guidelines for the members of how to safely live in the chapter house to not expose your sisters to the virus
There are numerous other scenarios; however, the major point is that there will be advice from experts like the CDC on how to follow health and prevention guidelines to keep your chapter house safe from spreading COVID-19. The key is to follow the health and prevention guidelines, educate your employees and members on these guidelines, and put measures in place to ensure their compliance of these guidelines. Should someone get injured or ill and allege they did so on your property, you will be able to confidently defend your position by having followed these best practices.
We actually did almost an entire webinar on decontamination and COVID-19. But what we know about the virus is changing almost daily, so it is imperative that you rely on the experts from the CDC. Bookmark this page for the CDC’s decontamination and disinfecting guidelines. We also created this resource, which uses the CDC guidelines, but is specific to sorority chapter houses. In addition, this weekly email addresses some other recommendations and questions.
From the news reporting (here and here for a few articles if you want some light reading), it sounds like the Canadians have tested better from the beginning, so they might have a leg-up on opening things back up before the US. It is our opinion that the wisest thing our clients can do is encourage their Canadian members to rely on direction from the province governments and University officials.
Here are two resources that we have found helpful:
- This article explains how Canada is supporting students and universities.
- This website is the Canadian government’s public health guidance. There is not a specific guidance for colleges and universities, so we think it is better for our clients to rely on the CDC guidance (it would be the same anyway).
What are some items to consider when prepping your chapter house for the return of your members this fall?
We are not providing any refund language at this time, since there are so many directions it could go from both financial and contractual standpoints. Here is our rationale as of today:
Sorority housing is positioned in an interesting lane, being more connected to the university than a private apartment, but more private than a university dorm. As you said, everything is being handled on a case-by-case basis. Our recommendation (in general) has shifted to advising that sorority houses close (when they can) to limit liability at this point, whether or not the university has mandated it. This is due to the extent of social distancing measures coming from the CDC, along with state and federal guidelines, and with a big purpose of sorority housing (proximity to physical university classes) being diminished.
Unlike a private apartment, which would presumably stay open and leave it up to the tenants to stay or go, if the sorority house does close it might not have as much leverage to withhold refunds. Therefore, there is some risk that house corporations could be opening up breach of contract allegations. Breach of contract claims could include where a parent alleges “unjust enrichment” for a sorority house closing, more likely if no fee adjustment is eventually offered. It could be argued that unless the housing agreement specifically states tenants have to pay for housing regardless of unforeseen circumstances, tenants have a right to demand a refund for the time the facility was closed, or else risk breaching the contract.
We realize how this can be situational, and we will support you either way on refunds. This is ultimately your business decision, to be weighed with financial and legal obligations. Keep in mind the Sorority’s Directors & Officers policy offers $100,000 for defense cost only, so it may be able to handle some pushback, but perhaps not across the board.
Important questions to consider to prevent fraud during the chaos:
- Where are your assets and who has access to them?
- Where are the bank accounts?
- Who is spending money?
- Daily review of all items
- A time for early and hard measures
COVID-19 has put pressure on absolutely every element of running a chapter and/or running a house corporation. We have generally looked at fraternal operations in the three risk management areas of:
- Property management
- Financial management
- Employment management
We have seen a lot of attention to the property and employment areas and wanted to highlight the financial management. The chaos of the time could draw your attention away from the practice of good management of your financial assets. Now more than ever, the use of dual controls must be used, and extra precautions should be engaged to reduce your risk to fraud and embezzlement.
Unfortunately, there is an exclusion under the business interruption coverage for viruses, which is where we would typically go to seek out protection for refunds.
We are exploring all other options available to our clients. Stay tuned to our COVID-19 Response page for further updates.
Please review this article in yesterday’s Wall Street Journal for more information (non-paywall version here), and bear in mind that most, if not all, including the policies in the MJ Sorority program, contain similar verbiage regarding business interruption and civil authority. The Property policy includes Loss of Income coverage, which provides coverage for your ongoing and extra expenses, but only following a covered property loss. For example, if you would have a pipe burst that would cause you to have to remove several women from their assigned rooms. If they were required to find alternate housing on their own, the policy would provide that lost income. More commonly, especially for a short term, the House Corporation would find alternative housing, such as at a local hotel, and the policy would pay the difference between what the women are already paying for and the cost of the hotel.
However, the policies require that property loss trigger before they provide payment. Unfortunately, there isn’t any coverage in the policy for the situation in which we now find ourselves because there has not been a defined property loss. This is a good time to review your housing and employment contracts to see if/how unexpected house or university closings are to be addressed.
It appears that most universities will close for the remainder of the semester, and we are recommending that our clients follow suit. Some things to keep in mind:
- This is such an overwhelming and stressful time for all of those involved: House Corporation volunteers, employees, and members. It is important that House Corporations and property managers clearly communicate to their employees and member residents about procedures and expectations.
- We are encouraging House Corporations to schedule move-outs in a staggered way, so as to minimize the number of people in the house at any time.
- As always, the insurance program does not cover member’s personal property. If member’s personal property is damaged, they will need to rely on their parent’s homeowners’ insurance or a rental policy.
- We typically recommend that House Corporations do not store member’s personal property, but these are extraordinary circumstances. If you do allow members to leave their personal property, do your best to make sure the property is secure, just as you would for summer break.
- We recommend a thorough cleaning of the property before reopening based on CDC guidance.