Summer is upon us, so let's take a dive into a hot issue: can the association open its pool? The answer is, it depends. Pool openings are being permitted in various counties - many of which are subject to conditions of opening - and not being permitted in others. In determining when the association can open its pool, and whether it should open the pool, there are several things to consider.
Some counties have permitted outdoor swimming pools to open and others have not, and their timelines can vary greatly. Counties permitting association pools to open typically issue specific guidelines, limitations, or conditions that must be followed in order for a pool facility to operate properly and safely.
For example, Contra Costa County allowed outdoor pools to open in its June 5, 2020 order, subject to certain limitations. Riverside County opened pools in early May, subject to guidelines issued by its Environmental Health Department.
It's likely the association's community association attorney already knows what is and is not allowed in each county, so don't hesitate to look to them for guidance.
An association that opens in violation of a county order increases its exposure to potential liability and violates the law, so that is not a recommended approach. But, where the county order permits pools to open, associations should consider several factors and before opening the pool, take appropriate measures to do so safely and in accordance with county orders and guidelines.
Factor: Someone could become infected with COVID-19.
An obvious risk to be considered is that someone using the pool could contract COVID-19 and seek to hold an association liable. Prevailing opinion is that such claims are unlikely to be covered by an association's insurance policies.
Since health experts have confirmed that the risks of virus contraction are low in and around pools, especially if the proper precautions are being taken, it seems likely that a successful claim based on contraction of a virus under such circumstances is also low. However, boards and managers should be aware that opening the pool is not entirely without additional risk that did not exist prior to the COVID-19 pandemic.
If the Board decides to open the pool, we recommend following the state and county orders and guidelines closely to help minimize harm to others and minimize liability. We discuss how to do this below.
Factor: The association didn't budget for pool monitors and sanitization procedures.
In some counties, restrictions imposed on pool use is strict. There can be limitations on the number of pool users at a given time and sanitization obligations. Additionally, some counties require a separate responsible person be present at the pool while it is open to ensure compliance with the restrictions. If an association must hire a third party to do this, that will likely increase the cost to operate the pool this year and those increased costs were likely not included in the budget.
Factor: Ensuring social distancing protocols are being followed and managing a reservation system is too complicated.
Some boards have concluded that the restrictions and guidelines imposed by the county are just too complicated to implement for their associations and have concluded that the risks far outweigh the benefits. In other cases, they have concluded that there is no equitable way of coming up with and managing a fair reservation system. While these issues are not likely insurmountable, if ever there was a time for members to step up and help out their boards and community managers, it is now.
Factor: Not opening the pool is likely to be a very unpopular decision with members.
Given the risks of opening the pool, it may seem like the safest option is not opening the pool at all. There are some things to consider, however, if this is the way the board is leaning.
One consideration is member dissatisfaction. We have heard from associations all over the state that members are putting pressure on their community's leaders to open the pool, especially where such use is not prohibited in the county. By not opening the pool, for example, boards may experience members asserting they have the right to use the pool, since they pay assessments to maintain such common area amenities.
While member approval is not a legitimate reason to unreasonably incur risk to the association, it may still be a consideration when deciding whether to open the pool.
Factor: Enforcement could be more challenging if the pool remains closed.
Another consideration involves enforcement. It may be challenging to prevent members from using the pool if they can access it regardless of measures taken to prevent entry. Enforcement challenges should be considered, since associations have a duty to enforce the rules and policies they put in place.
Associations may need to consider whether enforcement challenges will make keeping the pool closed more of a burden than opening it.
Likewise, enforcing restrictions imposed by the county orders and guidelines may also prove challenging and such challenges should also be considered.
Reviewing the state and county orders and guidelines is key to ensuring compliance and mitigating the risk of harm to others and legal liability. Some of the requirements can be onerous for board and managers.
Legal counsel can help with drafting social distancing policies, disinfection plans, and language for hygiene signage and other items to be posted or distributed to members, staff, and others in compliance with state and county rules.
Associations who open their pools should adopt pool rules that are COVID-19-specific and that incorporate the guidelines imposed by the county on operation and use of the pool. This will maximize help ensure that those using the pool understand what is expected of them and why and maximize the association's enforcement ability when users fail to comply.
Rules might include: sanitization obligations; prohibitions on use by those who exhibit symptoms of being ill; social distancing protocols; new food and drink guidelines; reservation procedures; use of other facilities such as picnic areas and barbeque grills; time limits on pool use; and use of equipment, as some examples.
Associations are subject to risks that didn't exist last summer. It may be prudent to shift some of that risk away from the association and to those who are choosing to assume the risk by using the pool. Boards should work with their association's legal counsel to determine whether such an agreement is appropriate. How such agreements are drafted is key to their enforceability and, as such, these agreements should always be drafted by counsel.
We are here to help you wade into choppy waters and we wish everyone a safe and relaxing summer.
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