Client Alert: Guidance for Opening Pools in Community Associations During the COVID-19 Pandemic

Date: May 22, 2020
With Memorial Day right around the corner, many communities are ready to open their pools for the season. However, with the COVID-19 pandemic still a concern, homeowners associations, condominiums and housing cooperatives should first establish policies and procedures to keep residents safe.

In determining when pools can reopen, each association should first look to any local ordinances, state and federal orders as well as guidance from the CDC. Different jurisdictions throughout the United States each have different COVID-19 policies and orders which will govern both when and whether pools can reopen and what measures are required for their safe operation. Washington, D.C., Maryland, and Virginia are currently in planning phases in determining if and when pools can reopen. It is anticipated that these policies will be issued in the coming weeks. Delaware has allowed reopening of pools as of 5:00 p.m. on May 22, 2020, but is subject to a variety of restrictions such as a 20% limitation on capacity and adoption of written procedures, including enhanced cleaning and enforcement procedures. In addition to federal and state regulations, counties, such as Montgomery County, Maryland, are creating their own regulations for pool reopening, which may be more restrictive then state regulations. Likewise, Worcester County, Maryland, which includes Ocean City, has published interim guidance for opening semi-public pools. Associations should consult with their attorney for specific guidance on pool reopening in your jurisdiction.

The CDC has stated that there is no evidence that COVID-19 can spread to people through the water used in pools or hot tubs. Proper operation and disinfection of pools and hot tubs should kill the virus that causes COVID-19. With that said, associations should consider the following strategies when reopening the pools:
  1. Post signs around pool areas providing information on effective methods to avoid COVID-19 exposure, such as social distancing and handwashing.
  2. Limit entry to the pool only to residents and owners in the community; consider a no-guest policy.
  3. Reduce capacity limits to avoid overcrowding in the pool area; consider creating signup sheets/reservation times to stagger swim times.
  4. Ban food from the pool area.
  5. Remove tables or other furniture that promote large gatherings or that cannot be regularly cleaned and disinfected. Any remaining loungers or chairs should be placed at 6-10 foot distances from each other.
  6. Ban pool toys and other objects such as pool noodles that are not used for the purpose of swim safety.
  7. Regularly clean the pool areas, pool equipment, and commonly touched surfaces. Reducing pool hours or creating mandatory closing times during the pool day can help create time for cleaning.
  8. Enforce social distancing and other general COVID-19 guidelines such as washing hands, not touching hands to face, and wearing masks when not in the water.
  9. Lifeguards should be focused on ensuring that swimmers are safe and should not be made responsible for enforcing regulations such as social distancing if it interferes with their duties. Consider hiring additional staff and creating a plan to enforce COIVD-19 related rules.
  10. Do not violate the Fair Housing Act or antidiscrimination laws such as creating adult or children only swim times.
Even after adopting policies to mitigate the spread of COVID-19, associations should consider their ability to enforce the policies. As lifeguards should primarily be used to monitor swim safety rather than enforcing separate COVID-19 policies, associations may need to consider hiring additional staff to monitor the pool area. If residents are violating the rules, such as ignoring social distancing guidelines, then associations will need to consider how to enforce its procedures and whether the pool needs to be closed permanently.

For communities that are choosing not to open their pools this season, associations should continue to maintain the pool areas. Local jurisdictions such as Alexandria, Virginia, have issued guidance that pools that remain empty over an extended period of time can damage the pool structure and that full pools that are not properly maintained can become breeding grounds for insects such as mosquitos. Therefore, whether your association chooses to open the pool for swimmers, it should at the very least maintain it properly.

Another question we have received from community associations is whether an association’s insurance policies will cover COVID-19 related claims. While each policy is different, many insurance policies contain exclusions for COVID-19 claims and therefore the association may not be defended or insured against such claims. Consulting with your insurance broker for guidance about potential coverage issues is a good place to start before reopening the pool. The Board can then use this as additional support for its decision to open the pool and the procedures to employ when doing so. In consideration of potential Covid-19 related legal claims and difficulties in enforcing policies, some associations may be in a better position to keep the pool closed to swimmers this season.

Finally, for associations who use pool management companies, many associations are bound by contracts requiring them to pay for services regardless of whether the pool season moves forward. We always recommend that associations that have service contracts, such as pool management contracts, have those contracts undergo legal review before execution. When an association’s relationship with a pool management company ends, it is the provisions of the contract that govern how the termination progresses and how disputes are resolved. While many pool management companies offer fair terms and liberal termination clauses, other companies have created one sided contracts that force associations to pay heavy liquidated damages, interest, and other fees without recourse. While conducting business in this manner is not conducive to long term business relationships, many communities have been subject to such treatment because the contract was drafted solely for the contractors benefit.

During the COVID-19 pandemic, some pool management companies are offering alternate arrangements to associations that are unsure whether the pool season will move forward. Some of these options entail a reduced cost for pool maintenance if the pool does not open for swimmers, or an alternate price structure to allow a delayed opening or extended pool season. Associations should contact their pool management companies as soon as possible to see what options are available. If an association chooses to terminate the contract or not use the pool management company’s services, many contracts contain a provision called a force majeure clause. Depending on the language of this clause, it can allow the association to escape liability under the contract upon the occurrence of an extraordinary event or a circumstance beyond the control of the parties, such as the COVID-19 pandemic or a government restriction on opening the pool. Another option may be an argument for frustration of purpose or impossibility, which occurs when an unforeseen event, such as COVID-19, undermines the original purpose of the contract or creates a situation where it is impossible to carry out the contractual terms.

One of the concerns this pool season will be the availability of lifeguards. Many pool management companies use foreign lifeguards to staff community associations. Due to the emergence of COVID-19, it is possible that there may be a shortage of lifeguards, which may impact the ability of associations to open pools. No association should open their pool if it cannot provide the number of certified lifeguards as required by law. We recommend you consult with your Whiteford attorney to determine what options your association has in these circumstances.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.