The sun is shining, the water is inviting, and more community association pools are open this summer—with appropriate restrictions in effect. Splash down!
By CAI Staff
IS THE POOL OPEN? Why not? Are you going to lower assessments because it's closed? What restrictions are in place? Do I have to wear a mask? Can I bring a guest? Why do I have to sign a liability waiver? How does this reservation system work?
Community association board members, managers, and attorneys were peppered with questions from residents about pools in 2020 during the height of the COVID-19 pandemic. Faced with so much uncertainty, 44% of communities kept their pools closed.
One year later, community associations have entered another pool season facing many of the same questions—and perhaps some new queries about vaccinations and masks. They're also facing increasing frustration from residents who see the success of the vaccine rollout in the U.S., are fatigued with pandemic restrictions, and want access to one of their favorite community amenities.
Some residents have a “desire for everything to return to normal come hell or highwater," reports Thomas Curry, CMCA, AMS, PCAM, general manager of Watergate at Landmark Condominium in Alexandria, Va.
Leah K. Burton, an attorney with Roberts Markel Weinberg Butler Hailey in San Antonio, agrees. “People are over it and want to get back to normal. If a governor lifts a mask order, residents think they can ease back into normalcy." And it's difficult to keep people out of the pool. “ 'You can't catch COVID in the pool' is the rationale, but the pool area remains a concern," she adds.
Watergate at Landmark, like many community associations across the country, opened its pool on Memorial Day weekend with the same rules in place as last summer.
More pools are opening in 2021 but with caveats, according to a CAI survey this spring of nearly 1,000 members. Restrictions aren't changing much this year.
Cautious optimism seems to be the prevailing attitude. Only 2% of survey respondents said they plan to close the pool this season compared to last year's 44%. And associations delaying their pool openings dropped from 30% in 2020 to about 9% this year.
At the time of the survey, more than a quarter of all respondents were still undecided.
The biggest factors reported by respondents holding up their decisions were fear of legal exposure; inability to meet federal, state, or local requirements; and concern about spreading the virus. All valid concerns.
Kings Grant Open Space Association in Marlton, N.J., opened its pool with restrictions but had to wait to finalize plans until the state released its updated guidance in late May (New Jersey issued another update to its guidance in early July. See the state's latest recommendations).
Among New Jersey's health and safety standards required for pool openings:
▋ Limit indoor and outdoor capacity to a number that ensures all individuals or groups can remain 6 feet apart. Establishments are not subject to a percentage-based capacity limit.
▋ Patrons and spectators must wear a face covering while on the pool deck and when social distancing of 6 feet from nonhousehold contacts cannot be maintained.
▋ Use reservation, sign in, advanced ticket sales, or cancellation apps where possible to manage and monitor patron attendance and flow throughout the day and address capacity limits.
▋ Discourage staff and patrons from sharing items that are difficult to clean, sanitize, or disinfect or that are meant to come in contact with the face (e.g., goggles, snorkels, nose clips).
▋ Patrons are allowed to use their own water play equipment.
▋ Stagger the use of shared spaces such as restrooms, showers, locker rooms, breakrooms, etc. The number of patrons inside the locker rooms should be monitored to ensure social distancing is maintained within the enclosed space.
One concern at Kings Grant was the community's baby pool, which has a separate fence and gate. Children are under the supervision of their parents and not lifeguards. The association's pool management company recommended that Kings Grant keep the baby pool closed due to the difficulty of getting toddlers to social distance.
“Our board felt very strongly that they wanted it open, so we reached a compromise," says Joanne Bradley, CMCA, AMS, PCAM, executive director at Kings Grant. “Only one household will be able to use the pool at a time."
Residents who wish to use the baby pool will check in with the COVID-19 attendant (a required position in New Jersey). If no one is using the pool, that family may use it for one hour. If someone is already using it, they will be put on a waiting list until that family's hour is up.
Harvest, a 1,200-acre large-scale community under development in Argyle, Texas, opened its three resort-style swimming pools on schedule this summer, says General Manager Tim Mills. The community is following state guidelines on pool operations and occupancy, with information posted on signage around the pools and shared with residents through email and social media.
Some of the lessons from 2020 that Harvest is applying this year are continuing to limit pool use to residents only and spreading furniture apart to encourage physical distancing. Residents have been understanding of the changes to pool operations during the pandemic, and there has been minimal pushback, notes Mills.
Residents of Dobson Ranch Homeowners Association in Mesa, Ariz., are thrilled to be able to enjoy the community pool this summer, according to Lynelle Glysson, CMCA, AMS, PCAM, the association's executive director. The association, which operates four pools, put strategic COVID-19 safety protocols in place to protect residents and staff.
Additionally, the community features a splash pad, which is a popular attraction for families with small children. According to Glysson, the splash pad is able to open with limited hours to cap the number of people in the area so everyone has a chance to enjoy the amenity. The community also will offer water aerobics and a summer camp limiting the number of people who can participate.
The association will host a swim team at their junior Olympic pool as well. “We will limit the number of swimmers on the pool deck at one time, up to 20. Only swimmers and coaches could be on the pool deck—no parents or guests," she says.
Clearly, vaccinations distinguish the 2021 pool season from last year. While vaccinations have reduced fear, they do not yet justify abandoning COVID-19 restrictions. Burton says that, “Although the vaccine will reduce contamination, no one really knows; we're all full of hope, but we still have to make it through another pool season, and people still have COVID."
More than 90% of respondents to CAI's survey say they are not requiring vaccinations. However, a little more than 6% of associations are requiring them before residents can use the pool, and just over 3% are requiring them for employees and contractors.
Not everyone agrees that associations have the authority to require vaccinations. According to Mark Einhorn, an attorney with Marcus, Errico, Emmer & Brooks in Braintree, Mass., “Boards can't reasonably or legally bar unvaccinated residents from the common areas without risking violating fair housing laws. Also, imposing a vaccine requirement implies that you are going to enforce it, and that creates potential liability if you don't."
Harvest is not requiring proof of vaccination to use the pools, nor is it requiring liability waivers or assumption of risk forms. “We do have signs that provide information to the homeowners regarding the steps taken to make the pools available for use. We also encourage them to make their own decision based on their comfort level," Mills adds.
Most associations put COVID-19- specific pool rules in place last year, and those will remain.
Burton says COVID-19-specific pool rules are important and recommends recording them. Residents should understand they “will expire when state mandates are lifted."
Getting residents to adhere to pool restrictions does not seem to be an issue for most associations. Eighty percent of respondents reported no issues with residents complying with pool rules. For many associations, compliance issues were solved by simply asking offenders to leave or threatening to close the pool. That threat, according to one respondent, motivated residents to “self-police."
Attorneys and managers seem to agree that restrictions implemented last year at the height of pandemic should remain for the 2021 season. For example, about 77% of survey respondents reported implementing social distancing on the pool deck last season, and that number remains about the same for the 2021 season. Similarly, in 2020, 60% of survey respondents reported implementing “no guests" policies. In 2021, 47% said this would be a new practice.
According to survey respondents, 40% require residents to sign a liability waiver.
However, George E. Nowack, a fellow in CAI's College of Community Association Lawyers with NowackHoward in Atlanta, says, “No state allows a property owner to escape liability for negligent property maintenance," which could be claimed if a resident is exposed to COVID-19 at an association facility.
Instead, Nowack, a CAI past president, recommends associations require pool users to sign an assumption of risk statement. “As the name indicates, a signer expressly acknowledges there is a risk and agrees to assume that risk. It is a significantly stronger defense than a waiver."
“There is a difference between a waiver and assumption of the risk. A person can assume the risk if they are informed of the danger. Acknowledging the conditions and the risk, together with the information released by the Centers for Disease Control and Prevention, makes sure a person is informed of the risk. (Once informed,) the person knowingly and voluntarily assumes the risk of contracting the virus on common property."
Last year, about 31% of associations limited pool access using reservation systems. More associations appear to be following suit. Kings Grant is one of them. “We plan on using a reservation system for the pool and other activities, such as pickle-ball and tennis," says Bradley.
Dobson Ranch in Arizona is taking a similar approach.
“We opened our pools by setting up a reservation system through an app," explains Glysson. “The goal is to limit the number of people per session and have two-hour sessions with 30 minutes in between for cleaning."
Burton says pools should not return to full capacity yet, and reservation systems are one way to maintain user limits. “If residents exceed these limits, associations may need to suspend privileges or shut down the pool."
While progress has been made fighting COVID-19, associations are still facing the same issues this summer as last. The foremost consideration is to “Follow CDC guidance. Keep your staff and residents safe," says Curry.
This article was adapted from Pool Position, available from CAI Press. Debra Lewin, a freelance author and editor based in West Virginia and CAI's former director of publishing, contributed to Pool Position. CAI staff members Daniel Brannigan, Kiara Candelaria, Ella Cox, and Laura Otto contributed to the updated guidance and interviews available in this article.
CAI'S SPECIAL REPORT, released in May, covers s wim season operations during the COVID-19 pandemic. Free to members, Pool Position includes operational advice, survey results, safety guidelines, and sample documents. Some highlights include:
HEALTHY POOLS—based on Centers for Disease Control and Prevention COVID-19 guidelines and advice from CAI member experts.
▋ Restrict pool use to only residents by issuing a “no guest" policy.
▋ Limit the number of people allowed in the pool area at one time.
▋ Remove most or all furniture to better maintain 6 feet of distance between residents.
▋ Close pools briefly throughout the day to clean and disinfect frequently touched surfaces.
▋ Provide sufficient equipment to minimize sharing or requiring disinfecting between uses.
SAMPLE DOCUMENTS— customizable documents available at www.caionline.org/sampledocscovid.
▋ Sample letter to update residents about common areas and amenities
▋ Sample association signage for common areas
▋ Sample assumption of risk form
»Access Pool Position at www.caionline.org/shop.
CAI'S GOVERNMENT and public affairs team has a roundup of state government actions regarding COVID-19 impacting community associations. Updated regularly, you can view indoor gathering limits and travel information, pool guidance, face mask updates, and foreclosure and eviction suspensions specific to each state.
» Go to www.caionline.org/StateActionsCOVID.
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