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Should the Association Pool be Reopened During COVID-19?

As the State of New Jersey slowly recovers from COVID-19, Governor Murphy has begun to reopen the state and relax restrictions on businesses and activities. Under Executive Order 153, outdoor swimming pools are allowed to reopen effective June 22, 2020. However, pools that are reopening during this time must comply with standards and policies issued by the New Jersey Department of Health.

However, it begs the question of should an association open its pool? If a board is considering reopening the pool, it is very important that it understands the requirements of Executive Order 153 and the standards promulgated by the Department of Health. Importantly, these standards are in addition to the normal requirements of opening a pool for the season.

There are numerous requirements to opening a pool pursuant to the Department of Health guidance document. Below is a summary of the requirements, but you should read the full guidance document for all details if you are considering opening a community pool.

First, the association will need to get prior approval from the local health department to open the pool. Next, the association will need to develop a written COVID-19 Pool Operation Prevention Plan (“CPPOP”), which documents the procedures that the association will take to comply with the requirements of the guidance document.

Staff must be equipped and trained on COVID-19 awareness, cleaning, and sanitizing to perform their duties in a manner that promotes safety for the public and staff. There should be an ambassador whose sole job is to monitor and encourage social distancing, and there should be a COVID-19 contact person.

The association will also need to establish a protocol for acquiring and distributing Personal Protective Equipment, develop a police notification policy when there is a violation of the Executive Orders, implement a policy for screening staff entering the facility, and screening visitors for signs of COVID-19.

With access points, the association will need to designate, limit, and stagger access to entry and exit points to avoid congregation. Signage must be posted warning patrons to be alert for signs of illness and to stay home if they think they are sick.

In a non-discriminatory manner, capacity must be reduced to 50%, and capacity for hot tubs must be reduced to allow social distancing. A COVID-19 emergency treatment area should be designated, and a procedure will have to be established for safely isolating and transporting anyone showing symptoms.

The association should use a sign in sheet for all staff and visitors to help with contact tracing. If someone is sick with COVID-19, the association will need to cooperate with the authorities in reporting and investigating reports.

The association will need to develop a cleaning and disinfecting procedure. This includes providing sanitizer facilities, making sure there are sufficient cleaning procedures, and requiring frequent cleaning and disinfecting of touched areas and shared items.

Furniture and equipment cannot be shared (except among immediate family members, household members, caretakers, and romantic partners). Items that are shared must be cleaned and disinfected before it can be used by another person. The association shall not provide for rent or use water play equipment (goggles, pool noodles, kick boards, pool toys, etc.). While members can bring their own water play equipment, those cannot be shared.

If there are restrooms, shower areas, or locker rooms, foot coverings must be used within them. Occupancy of these areas must be limited, and staff (except lifeguards) and members should use masks when not in the pool. Staff must do proper and frequent handwashing, and the association will need to supply the staff with gloves, masks, and Personal Protective Equipment.

Tables and furniture need to be spaced out to encourage 6-feet separation, and the association must encourage 6-feet separation for members in the pool as well. Finally, there are a multitude of required signage that must be placed.

These are all additional costs and staffing requirements that must be taken in order to ensure that the association remains compliant with Governor Murphy’s executive orders. From a management prospective, it may be very difficult to implement and enforce the rules and regulations necessary to open an outdoor pool.

The COVID-19 Pool Operation Prevention Plan and the Department of Health guidance document would likely be used as the standard of care in a lawsuit, and any deviation would likely result in liability. However, even strict compliance with a plan and the guidance document may not be enough for a full defense to liability.

Importantly, it is unlikely that these requirements can be delegated to another entity such as a pool management company. Even if an association hires a pool company to run the pool, the association will likely remain responsible for the actions of the pool company and for any failure to comply with the requirements.

At the end of the day, reopening a community pool creates a health risk for members and staff, and creates potential liability for the association.

But the members are demanding the pool to be opened, aren’t they are accepting the risks?

Even if members are demanding a pool to be opened, the association should be very careful in making a decision to reopen a pool. It is the association’s responsibility to maintain and operate a common element, and therefore to take measures to protect the members.

While it is possible that a written waiver could be used, or an argument be made that a member accepted the inherent risks, these will not be a complete defense. It will still be the association’s responsibility to comply with all the procedures and protections as promulgated by the Department of Health.

This is more than just enacting the measures, but also maintaining and following the measures through the entire pool season and public health crisis.

In addition, it is unlikely that this responsibility can be shifted. For example, it would always be the Association’s duty to keep the furniture and equipment sanitized. While the association could try to enact a rule so that it is each member’s responsibility to sanitize the furniture after use, this will not likely absolve the association of liability.

Another concern that an association needs to consider is liability from the staff, including lifeguards. The association would be responsible for providing adequate protections and training for the staff. This includes making sure they have adequate protections, that they are trained to follow the special procedures and trained to handle the special situations, and that they are adequately empowered to enforce the rules in place due to COVID-19. An association would need to make sure there is a procedure in place to handle someone who is disobeying the rules, and how to safely de-escalate situations while keeping staff (and other members) safe.

Opening a pool is not a simple decision even if the members are demanding it. There are health risks to members and staff as well as potential liability that must be considered.

Well the Association has general liability insurance, doesn’t that mean we are covered?

While the answer to this question is very fact specific and depends on the language of the policy, generally speaking, it may be difficult to secure insurance coverage for a COVID-19 related claim. If a person asserted a claim against the association after getting ill, it is not clear if this would trigger coverage under the policy. If the claim was to get through a more specific exclusion, it would still need to be determined an “occurrence” (typically an incident/accident), and then overcome an “expected” or “intended” injury exclusion.

It is likely that an insurance carrier will deny coverage in such a situation. Even if there should be coverage, it may require a long and costly litigation to secure it.

Conclusion

This is a non-exhaustive list of a variety of matters that will need to be considered if an association wants to open the pool during COVID-19. There are many health risks for the people using the pool and for the staff necessary to open the pool, and a lot of potential liability for the association.

Ultimately, this is a decision that an association should make after thoroughly weighing the potential risks and benefits, and after considering if the association will be able to enact and enforce the procedures necessary to open a pool. While it is now legally possible to open pools, the question that an association must answer is should the pool be opened.

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