One of the most frequent questions we receive is whether it is “OK,” “allowed,” or “legal” for homeowners associations or condominiums to open their pool this spring. Every community is different and boards of directors will have to make the decision to open based on several factors, including the type of community, whether that community has the resources to comply with CDC and local guidelines, and whether it can comply with any state requirements that may apply.
Each board of directors must make its decision based on its best business judgment after appropriate due diligence. Just because the state or the county says a pool can be open does not mean that the association must or should open the pool. As many boards have discovered, there are additional costs of operating pools safely during the pandemic. The board must determine if the community has the funds to pay for any required signage, possibly having and paying staff to serve as pool monitors where needed, and to pay for necessary cleaning and disinfecting.
We advise that any community planning to open their pool adopt clear policies and procedures to govern their opening. These should be adopted as a supplement to any existing pool rules and clearly communicated to community members. Good practices may include:
- Placing signs at entrances and other high traffic areas to remind residents of pool rules and the need to follow social distancing
- Limiting pool hours to better control the number of residents and avoid crowding
- Communicating that pool use and hours are subject to change to comply with COVID-19 protocols and precautions
- Having residents sign up to use the pool during scheduled intervals (1 or 2 hour reservations, for example)
- For pools with bathrooms, ensure that they have well-stocked hand sanitizer and soap dispensers and are cleaned and disinfected frequently
- Limiting the pool area only to residents—no guests—and only for pool use
- Removing pool furniture so that residents only handle or come in contact with their own chairs and other furniture
- Taping off some of the pool area furniture so chairs left in place are 6 feet apart.
Please remember, these are just examples of what may be required and reasonable. Different amenities may require more or less of the examples above.
Another question we are starting to get more often is whether an HOA can require proof of a COVID vaccination before a resident can use the pool. While this may seem like a good idea, it likely exceeds an association’s reasonable authority over its residents. The law will jealously protect an individual’s personal medical history and the right to privacy. It is one thing to require someone to wear a mask, but another to require that they agree to a vaccination that they may oppose for religious, personal, or legitimate medical reasons. In addition, a vaccination requirement may suggest to some people that the pool is “COVID-free,” despite the fact that health officials have been clear that those vaccinated can both contract and transmit the disease. And, of course, owners can easily make their own vaccination cards to fake compliance. We recommend that associations focus on external actions (like masking and social distancing) instead of a difficult to enforce and likely legally problematic vaccination requirement.
Limited liability laws specific to COVID may help an association considering opening its pool this summer. In North Carolina the General Assembly passed a law in 2020 that provides some protection for community associations that open their pool if they comply with state executive orders. In South Carolina a proposed bill (S0183) would operate in a similar way.
If the board for any HOA determines that it cannot safely open its pool then it is unlikely that any liability should attach for that decision. The same could not be said if the decision was made to open the pool but it was not done in compliance with health guidance or state or local requirements or the association failed to require residents to comply with the community rules in place. So, although community residents are likely dreaming of pool days to come, boards should proceed carefully and only open pools if it can be done safely, with minimized risk, and with clear procedures in place to protect the community.
If you have questions about COVID and how it impacts your community reach out to one of our community association attorneys in any of our Charlotte, Greensboro, Triangle, or Coastal offices.
Author: David Wilson
Articles have been Reprinted with permission from Black, Slaughter, Black.
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