Associations, Amenities, Pools and COVID-19
As Pennsylvania Governor Wolf’s long-term plan to reopen the Commonwealth on a regional basis is now underway, community and condominium association leaders must consider the possibility, safety, cost and advisability of reopening their amenities such as swimming pools. While Southeastern Pennsylvania remains in the “red” zone of Governor Wolf’s reopening plan – pools must remain closed. Even in the more relaxed “yellow” zone, pools appear to fall within “recreational” and “entertainment” restrictions against social gatherings and in-person activities. Fortunately for association boards, compliance with governmental mandates leaves no room for discretion. It is thus entirely possible that in certain areas of the state, there will be no 2020 pool season by virtue of governmental prohibitions – not as a result of decisions made by an association’s board.
However, the eventual lifting of governmental restrictions must not be seen as a mandate to open. The decision of whether to re-open falls squarely within the broad powers granted to governing bodies of associations to operate their facilities in a manner they believe to be in the best interest of the community. All board decisions are subject to the appropriate standard of care: board members must act in good faith, “in a manner they reasonably believe to be in the best interests of the association and with such care, including reasonable inquiry, skill and diligence, as a person of ordinary prudence would use under similar circumstances.” In performing their duties, members of the board are entitled to rely in good faith on opinions, reports, or statements from experts and professionals within a particular field (for example contractors, consultants, attorneys, insurance professionals). Boards may thus be called upon, to the extent possible and compliant with state or municipal restrictions, to determine;
1) whether or not to open the pool, and
2) if the pool is opened, what conditions are to be imposed.
The Centers for Disease Control (“CDC”) reports that there is no evidence that the virus that causes COVID-19 can be spread through the water in pools, hot tubs, spas or water play areas, and the “[p]roper operation and maintenance (including disinfection with chlorine and bromine) of these facilities should inactivate the virus in the water”. However, it is further advised that to the extent these facilities are permitted to open in accordance with federal, state and local restrictions, individuals must continue to protect themselves via social distancing, good hygiene, hand washing and sanitation. Moreover, common sense dictates that individuals experiencing symptoms of illness, those who have been in contact with someone who contracted COVID-19, or those who are under a quarantine order should not be permitted access to the pool area. Proper cleaning and routine disinfection of all surfaces (with an emphasis on those commonly touched surfaces such as chairs, tables, umbrellas, floats, ladders, railings, etc.) is necessary. For more information on the recommended cleaning, sanitation and disinfection practices for community facilities and recreational facilities, please visit the following CDC websites:
1) Cleaning and Disinfection for Community Facilities
2) Guidance for Administrators in Parks and Recreational Facilities
3) The Model Aquatic Health Code
Please note, however, that more specific operational guidelines are expected to be published by the CDC and the state or county departments of health.
Within these restrictions and guidelines (as they develop and are made available), boards must nonetheless consider the feasibility and cost of compliance. As indicated above, use of the pool may involve hundreds of touch-points (pool furniture, handrails, door knobs, bathrooms etc.) and require enforcement of minimum person to person distances (in or out of the pool). Who will perform regular sanitation, at what frequency, in accordance with what standards and at what cost? Will a lifeguard or other monitor be able to police social distancing, mask wearing and overcrowding? What will such monitoring cost and is it feasible? Does such monitoring and enforcement create additional risk?
The decision of whether to open the pool must also involve the association’s insurance agent. If an owner or resident (or person with whom they came into contact) alleges to have contracted COVID-19 at the pool and files suit, is there insurance coverage for the association or the individual members of the board? Communicable or infectious disease exclusions may apply. If coverage is not available, the risk of opening the pool may simply be too great to accept. Liability waivers may offer a layer of protection but may not hold up, generally apply only to the person who signs it, and do not prevent anyone from filing suit. Such claims must be defended despite merit; the cost of which, especially if not covered by insurance, could be substantial.
It is also necessary to consult with the association’s pool contractor; we understand that pools may have to be made “functional” to prevent damage to plaster and equipment. The pool contractor will likely recommend proceeding with physically opening the pool and limited operation (including periodic chemical treatment), even if entry to the pool and pool area may be prohibited. This ensures the continued and long-term health and integrity of the amenity and will mitigate costly damage to the pool. Of course, legal considerations include review of the pool contract. As the COVID-19 pandemic is an unforeseen circumstance, cancellation, termination, or renegotiation of the contract may be possible under force majeure, impossibility of performance or other legal theories.
Ultimately, the expense and practicality of operation of the swimming pool (as well as other recreational amenities), must thus be considered along with the health, safety, welfare and liability of the community. After consultation with legal counsel, insurance representatives, sanitation contractors and the pool contractor, it may be appropriate to keep the pool closed for the 2020 season. However, in the event opening of the pool is deemed to be in the best interest of the association, clear and specific pool rules should be adopted to comply strictly with all applicable restrictions and to prevent the spread of COVID-19 in the pool area. Such rules may include a staggered pool schedule, limitations on the number of individuals permitted in the pool area at one time, reduction in the number of permitted swimmers, swimming by appointment only, the taking of temperatures, elimination of pool furniture, incorporation of a strict cleaning and sanitation schedule, and a prohibition against visitors (among others). Associations must also be flexible to review these decisions and procedures as governmental restrictions evolve and they evaluate current operation.
Owners and residents should expect the possibility that the association’s pool will NOT be open this year. Accordingly, we suggest that boards clearly communicate the prospect that the pool may remain closed, and that in the event the pool is opened for use, significant restrictions, conditions, and costs will apply.
This article is not legal advice and is provided for informational purposes only. Actual legal advice can only be provided after consultation by an attorney licensed in your jurisdiction.