By Matt D.
As temperatures rise across the country, community
association residents may be pressuring their boards to open the association
pools. Associations are facing many questions about pool use and potential
liability in light of their jurisdictions’ orders.
Stay-at-home orders are being lifted or relaxed in cities and
counties across the country, but that does not eliminate the uncertainty
community association leaders face about how to reopen their community
facilities safely, and to what extent they may be liable for coronavirus-related
illness suffered by residents and staff. Each board must assess the risk to its
community. Whether to close or open a particular common area or community
facility depends on the type of facility, the needs of the community and the
potential for liability.
Until more states pass legislation granting immunity for coronavirus
exposure, each community association board must act to protect the
community from foreseeable risks and make decisions about reopening in the best
interests of the association, in coordination with experts and counsel. It does
this by closing facilities, by opening them when it is safe and prudent to do so,
and by disclosing to residents known conditions and how residents protect
Even though your city or county allows a particular amenity to
open, it does not mean your association should do so. An association must
evaluate its ability to open each facility, amenity or common area based on
health department orders and assessed risk, and a board must comply with local,
state, and federal coronavirus orders.
There is concern about liability if someone contracts
coronavirus after the board opens the pool. It would seem difficult, if not
impossible, for people to be able to establish that they contracted coronavirus
from the association pool or anything the board did or did not do regarding
pool use. For example, someone walking to the pool may have walked past a home
where someone sneezed. The greater risk is in not complying with existing
coronavirus orders, or in creating a situation that exposes residents to risk
unnecessarily. Boards should also ensure compliance with orders related to
operating and maintaining common areas.
In most jurisdictions, community association pools are
considered public under governing health and safety codes, even though they
exist in a private residential community association. In some jurisdictions,
pools in homeowners associations are allowed to open but must comply with
strict and costly protocols. According to the Centers for Disease Control and Prevention,
there is no evidence that the novel coronavirus can spread through pool water,
provided it is properly maintained and regularly serviced.
Before allowing pool use in your association, check with your
local government agency for the latest orders and pool guidelines. Many orders
require a daily pool inspection, not necessarily by a pool service company.
Communicate with your community’s pool service company to ensure its workers
are maintaining the water and cleaning the pool facilities as required and in
compliance with CDC guidelines, and get its response in writing.
The risk at pools is not in the water as much as it is in coming
in contact with people around the pool. If the board is inclined to open the
pool for community use, it should be under strict precautions and conditions,
such as the following guidelines:
Each board must put safety first and do what it believes is best
for its community.
This article first appeared in the Washington Post on June 17, 2020. Access the article here.