Common Area Amenities and Community Association Pools
With public health orders at the state, county, and local level evolving almost daily, many community association boards are wondering when and how they can reopen community pools. The uncertainty surrounding pool reopening is compounded by the fact that local public health orders, and their applicability to private community pools, differ from county to county. In some counties which have not taken a clear stance, the guidance provided by local governments differs from city to city.
When it will be safe and advisable to reopen the pools is a decision that the board will have to make based upon a risk benefit analysis and with reference to any county and local restrictions in place. If your county or city has orders in place which prohibit the operation of community pools, you should not reopen until such restrictions are lifted. If there are no such restrictions in place applicable to private, multi-residential, or community pools, or if such restrictions have been recently relaxed, the board of directors is not necessarily required to follow suit. Rather, the board has substantial justifications for keeping community pools closed given the current stage of California’s stay-at-home orders and discretion to act in the best interest of the community.
California is currently in Stage 2 of the Governor’s resilience roadmap. Community centers, public pools, playgrounds and picnic areas are not permitted to operate in California at this time. While community pools are private (although occasionally defined as public for regulatory purposes) – and private community pools are not specifically mentioned under any stage of the Governor’s plan, the board should look to local authorities for guidance on when it is safe – both from a public health and liability standpoint – to reopen swimming pools. The same concerns presented by use of public pools during a pandemic which have led to the closure of same apply to community pools as well. If and when local, county and/or state restrictions are relaxed, the Board should consult with its insurance advisor regarding the risk and liability of reopening pools during COVID-19. If claims relating to contraction of viral diseases are excluded from coverage under the association’s insurance policies, this should weigh heavily in the risk benefit analysis.
The only way to effectively eliminate an association’s potential liability should one or more residents’ contraction of COVID-19 be traced back to the community pool is to keep the pool closed. While an association cannot eliminate its potential liability upon reopening, there are layers of protection which can and should be put in place prior to reopening in order to mitigate the same. These protections involve pool rules, maintenance and cleaning plans, and signage.
Boards can begin to plan for pool reopening by putting a program in place to be adopted upon reopening of the pool. Modified pool rules can be adopted by the Board upon reopening as emergency rules, which will remain in effect for 120 days and do not require prior notice to members. Boards should look to the pool guidance issued by the Center for Disease Control and any local recommendations or restrictions in formulating pool rules as well as a maintenance and cleaning plan. New signage shifting certain risks to users and containing other advisements and guidelines should also be posted at all pool entrances. While now may not be the time to reopen pools in your community, it is definitely the time for all boards to start planning for the future. Boards should consult with their legal counsel to put such a plan in place now in order to ensure a smooth and immediate transition into pool operations when the time comes to safely reopen.