By Matt D. Ober, Esq., CCAL

The County of Los Angeles Department of Public Health Revised Order was issued on May 26, 2020. Section 7 h) excludes HOA pools from closure order. The following article has been updated as of May 26, 2020 with the latest information from the CDC.

The following guidelines respond to the many questions Richardson|Ober|DeNichilo has received from community associations throughout the state about pool use and potential liability in light of the existing (and sometimes inconsistent) COVID-19 Orders in place.

ASSESSING RISK

A community’s response to the Pandemic is not a one size fits all.  Every board must assess the risk to their particular community. Whether to close or open a particular common area or community facility depends on the type of facility and the needs of the community. Like the saying goes, “Anyone can sue anyone for anything.”  What is clear is that a board must act to protect the community from known or foreseeable risks and take action in the best interests of the Association as a whole, given the facts presented and in reliance upon experts and counsel.  It does this by closing down facilities, or by disclosing to residents known conditions and how residents can take action to protect themselves.

Yes, there is concern about liability if someone contracts COVID-19 after the board opens up the pool. But, it would seem difficult, if not impossible, for anyone to be able to establish that they contracted COVID-19 from the association pool or anything the board did or did not do regarding pool use. For example, someone walking to the pool may have walked past a home where someone sneezed.

The greater risk is in not complying with existing COVID-19 Orders, or creating a situation that exposes residents to risk unnecessarily.   There is no question that a board must do what is required to comply with local, state and federal COVID-19 Orders in effect. Additionally, boards should take action with respect to the operation and maintenance of common areas in order to ensure compliance with these orders.

COVID-19 and POOL USE and MAINTENANCE

Unfortunately, there is a lack of consistency and clarity among city and county Orders regarding pools. For example, in Southern California, pools are open in Riverside County. As mention, Los Angeles County recently allowed pools in homeowners associations to open, provided strict and somewhat onerous COVID-19 protocols are in place. Adding to the uncertainty, according to the Centers for Disease Control, there is no evidence that COVID-19 can spread through pool water provided it is properly maintained and regularly serviced https://www.cdc.gov/coronavirus/2019-ncov/php/water.html. Therefore, before allowing pool use in your association, check with your local government agency for the latest orders related to pool use.

Additionally, check with your pool service company to be certain that they are doing what is required to maintain the water and clean the pool facilities adequately, and in compliance with applicable COVID-19 guidelines; and get the representation in writing—an email should do. Some City Orders require that pools be checked daily – not necessarily by a pool service company but someone will need to make sure they are “checking” the pool (i.e. a daily self-inspection).

That being said, the risk is not necessarily in the pool water as much as it is in coming in contact with people on the deck surrounding the pool, pool furniture, or otherwise engaging with others around the pool.  Therefore, if the board is inclined to open up the pool for community use, it should be under strict precautions and conditions, such as the following:

  • Use signage at the pool to remind users of the COVID-19 rules and rules of use during this time.
  • The pool should be open to residents only for lap swim only. Guests are not permitted in the pool or pool area. All swimmers must practice social distancing in the pool and when getting in or out of the pool.
  • Consider limiting pool use to certain hours only. With a large number of owners, you may need to use a sign up system.  Maybe limit use to a block of time (30 minutes) and they have to sign up by a certain time the night before.  It’s not necessary to regulate it – it would be on the honor system.  For example, if they sign up and don’t show up, after 10 mins someone else can use the pool.
  • Prohibit standing or wading. Keep the spa closed.
  • Restrooms must be carefully monitored and regularly cleaned. Additional staff may be needed to clean and disinfect restrooms more often as pool use increases.
  • Prohibit sitting, standing, gathering, or congregating in or around the pool deck. If there is pool furniture, consider moving it or reducing the number of chairs to encourage social distancing if people don’t follow the “no sitting” rule.
  • Individuals should be advised to continue protecting themselves and others both in and out of the water. For example, by practicing social distancing and good hand hygiene.
  • Pool use and hours should be subject to change at any time in order for the board to comply as necessary with COVID-19 protocols and precautions, and as circumstances warrant.   For example, if the pool becomes too crowded or the demand for use is high, use may need to be limited, or perhaps residents will need to sign up for scheduled use.

ABOVE ALL, SAFETY FIRST

The important thing to remember is that there is no road map; these are merely guidelines.  Each board must do what it believes is best for its community given all facts and circumstances and the association’s ability to control or regulate conduct if things get out of control.

Be safe out there.

Written by Matt D. Ober

Matt D. Ober Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner at Richardson|Ober|DeNichilo.