By Matt D. Ober 

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.

Assessing risk

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 themselves.

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.

Pool use and maintenance

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:

• Use signs at the pool to remind users of the rules.
• Use markers, signs or other means to keep pool users from close contact with one another.
• The pool should be open to community residents only. Prohibit guests from the pool or pool area.
• Restrict pool use to swimming only. Prohibit standing, gathering, floating or wading in the pool. Set aside time for lap swim only.
• If you allow floating or wading, consider prohibiting any pool user from bringing inflatables, rafts or other shared objects into the pool and pool area. Flotation devices necessary for pool users who have difficulty swimming or need assistance should be allowed, provided they are thoroughly cleaned before and after use.
• Require all swimmers to practice social distancing in the pool and when getting in or out of the water.
• Consider limiting pool use to certain hours only, and consider a reservation or sign-in system, and limit use to a maximum time per day, such as 30 minutes. Additional staff may be needed to monitor pool reservations.
• Close the spa or restrict spa use to one person or members of a single household.
• Restrooms must be carefully monitored and regularly cleaned. Additional staff may be needed to clean and disinfect restrooms more often as pool use increases.
• Prohibit gathering on the pool deck. If there is pool furniture, consider modifying the layout or reducing the number of chairs to encourage social distancing. Make sure there is seating available before entering or when exiting the pool, for those physically in need of support.
• Advise residents to practice social distancing, use good hand hygiene and use masks before and after pool use.
• Pool use and hours should be subject to change. For example, if the pool becomes too crowded or the demand is high, use may need to be limited, or perhaps residents will need to sign up for scheduled use.

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.

 

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