NC Governor Roy Cooper issued Executive Order 141 (“Easing Restrictions on Travel, Business Operations, and Mass Gatherings: Phase 2”) on May 20, 2020 which will allow homeowner and condominium association pools to re-open on Friday, May 22 at 5:00 p.m. However, certain requirements must be in place. The Order imposes mandated “Requirements” that must be followed as well as “Guidelines” that are strongly recommended (but not mandated).
If the directors of an NC community association are discussing opening the association’s pool, the board should, at a minimum, consider the following Steps:
STEP 1 – The Governor’s announcement and authorization to reopen pools is at the State level. The association should still confirm whether there is a county, city or other order that may require the specific pool to stay closed. The association’s legal counsel should be involved in this confirmation. If there is no other order keeping the pools closed, go to Step 2.
STEP 2 – The association’s board must decide whether the pool will be opened or not. The fact that the association CAN legally open a pool does not necessarily mean that it SHOULD. The board must as always use good business judgment and pursue the collective best interests of the association. Since each association and each association pool operation is different, the board should discuss this decision with the association’s manager, pool professional, and legal counsel. If the board makes the decision to open the pool, go to Step 3.
STEP 3 – The association must make certain the “Requirements” in the Governor’s Executive Order are followed. Those Requirements include:
- Limit the user capacity in the pool to no more than 50% of maximum occupancy as determined by fire code (or, when fire code number is not known, thirty-three (33) people per one thousand (1000) square feet in deck areas, wading pools and splash pads), and a maximum occupancy in the water often (10) people per one thousand (1000) square feet. This user capacity is the “Emergency Maximum Occupancy” for the pool facility.
- Post the “Emergency Maximum Occupancy” in a noticeable place. An example of the recommended sign can be found under the “Maximum Occupancy” link at Staying Ahead of the Curve.
- Post signage reminding users about social distancing (staying at least six (6) feet away from others) and requesting that people who have been symptomatic with fever and/or cough not enter.
- Conduct daily symptom screening of any workers, using a standard interview questionnaire of symptoms, before workers enter the pool workplace. A sample “Non-Health Care Employee Sympton Screening Checklist” can be found under the “Symptom Screening Checklist” link at Staying Ahead of the Curve.
- Immediately isolate and remove sick workers.
- Perform frequent and routine environmental cleaning and disinfection of high-touch areas with an EPA-approved disinfectant for SARS-CoV-2 (the virus that causes COVID-19).
For associations that have a lifeguard or attendant for the pool: The association must arrange to train such individuals on all 6 Requirements above and make it clear that they must keep a daily log of when each Requirement was performed.
If the lifeguard or attendant is unable or unwilling to assist with compliance with the Requirements, the association will be considered to have an unattended pool. (see below)
For associations with unattended pools (not monitored by a lifeguard or attendant): The association must arrange for the board of directors, a committee, reliable volunteers, or some other party to frequently visit the pool to confirm compliance with the Requirements, and to keep a daily log of visits.
If the association cannot arrange a pool attendant, lifeguard, board member, committee member, or other party to ensure compliance with the Requirements, it will be difficult to argue that the association is complying with the Executive Order. Simply posting signage of the Requirements at the pool and relying on owners to self-police or to report violations is likely insufficient under the Order. Such associations should discuss their particular situation with association counsel, but they may simply not be able to open the pools at this time.
STEP 4 – Regardless of whether the association has a full-time lifeguard or attendant, the State recommends (but has not mandated) that steps be taken to encourage pool users, by signage or otherwise, to follow the Interim Guidance for Public Pools and Spas from the NC Department of Health and Human Services and the Considerations for Public Pools, Hot Tubs, and Water Playgrounds During COVID-19 from the Centers for Disease Control and Prevision.
NOTE: One factor for a board to consider in making the decision to open and operate the pool is that the association’s insurance may not cover claims of losses related to transmission of the COVID-19 virus. It is also possible that any directors and officers (“D&O”) coverage may not cover such claims as well. Questions about coverage should be directed to the association’s insurance agent and legal counsel.
NOTE: It is still unclear as to whether a violation of the Requirements could subject the association and/or its directors to penalties, including a Class 2 Misdemeanor.
NOTE: FYI, our attorneys have prepared pool use/waiver forms for many associations to specifically address waivers of liability from COVID-19 related claims. These waivers are based on a community’s specific circumstances and governing documents. If we can help you with this, please reach out to one of the attorneys in our Greensboro, Triangle, Charlotte or Coastal offices.
The information contained in this blog is provided for general purposes only and does not constitute legal advice. If you or your community have questions about reopening amenities or other portions of your community, please contact one of the community association attorneys at any of our four offices.
Author: Steven E. Black
Articles have been Reprinted with permission from Black, Slaughter, Black.
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