FLS Friday Forum is a free write-in column authored by Brian R. Fellner on topics of law affecting community associations. To submit a question, email Mr. Fellner at bfellner@flslawyer.com. All posts are for informational purposes only and do not constitute legal advice. Only your individual attorney can provide assurances that this information is applicable or appropriate to your particular situation. Nothing hereunder creates an attorney-client relationship between any reader and the author.
What does Governor Hogan’s recent order mean for my Maryland swimming pool?
— Ryan, an HOA board member in Maryland
As you know, Governor Hogan issued an order on Wednesday, May 27, 2020, stating in part that “effective as of 5:00 p.m. on May 29, 2020, outdoor swimming pools in Maryland may open to the general public.” While that sounds great – who couldn’t use a refreshing dip in the pool right now!? – the reality is that this is only one in a series of steps allowing for the possibility of your pool opening. Here is what Boards (and members – be patient members!) should keep in mind:
County Requirements
First off, counties generally control and regulate the safety and management of pools. So Governor Hogan’s order could more accurately have been phrased – “the State is no longer prohibiting pools from opening, so it is up to the counties now to determine what requirements need to be met.” This means you should be sure to check with your county regarding things like pre-opening inspections, limitations on number of patrons per square foot, and other issues. For example, Anne Arundel County has recently stated that rolling inspections will begin on June 5 and pools can open after that inspection occurs.
Preparation for the Season
While Governor Hogan’s order lifts the prohibition on pools operating, it cannot give back the time lost to the pandemic these past few weeks. Ordinary pool preparation tasks, such as inspections, lifeguard training, and more have all been necessarily delayed during efforts to limit the spread of COVID-19. These will all still need to be addressed by your pool management company; they cannot simply wave a magic wand and be ready to open. Work closely with your pool management or staffing company and talk about realistic timelines for that work to be accomplished.
COVID-19 Requirements
The Maryland Department of Health has put out the following guidelines:
- Outdoor swimming pools may open after determining the maximum number of people who may be in the pool while safely social distancing (dividing the surface area of the pool by 36).
- Patrons must maintain six feet social distance while in the pool and on the grounds.
- The following are closed: wading (kiddie) pools, spas (hot tubs), spray or splash pads, and lazy river pools.
- Pool operators must implement social distancing measures for all staff and patrons.
- Staff should wear face coverings outside of the water when interacting with others.
- Patrons should wear face coverings outside of the water whenever possible.
- Pools must maintain a supply of soap and hand sanitizer for patrons’ use, as well as an ample supply of pool equipment like noodles and kickboards to minimize sharing. No difficult-to-clean equipment should be shared outside of a family.
- Pool operators must disinfect frequently touched surfaces at least twice a day. They must also clean the floors, toilets, and sinks with soap and water daily. They must clean the pool tile and walls at least once a week.
- People who are ill with COVID-19 or in home isolation should not be at the pool.
As you can see, there are significant new requirements for health and safety in place for pools to operate. Some of these will require wholesale changes or additional training for staff; others necessitate posting signs and acquiring cleaning supplies; and still others mean that the Board or management will need to set up protocols for how to accomplish these. Your association may need to hire additional staff to supervise and ensure that these guidelines are being followed; costs are a concern in addition to the increased responsibility.
The process was begun by the governor’s order on Wednesday, but there are a number of additional steps to be taken.
Dealing with Limited Occupancy
Of course a major issue here is that any limitation on use of the pool is going to necessarily exclude some owners from use at certain times. Additionally, associations will want to limit their guest policies, which will lead to further questions on what constitutes a “guest.” Grandparents? Nannies? Babysitters?
Various associations have already discussed sign-in policies, assigned dates/times, wristband usage, and more. There will not be a one-size-fits-all answer here; discuss the available options and decide on what works best for your community. As an owner, you may wish to provide input to the Board, but keep in mind that they have a responsibility to put out a policy that is fair to all the owners.
Insurance and Liability
Insurance companies will be adding in new “infections disease disclaimers” for anyone renewing their policies in the coming weeks. Check with your insurer in advance of opening the pool to see what your coverage is. Additionally the Board should consider a liability disclaimer or waiver, posting signs to the effect of “use at your own risk,” and making clear to owners that even complete compliance with these requirements can not guarantee that a patron will not contract COVID-19 at the pool. Even taking all these steps, there is no guarantee that your pool will not be sued. Anyone can file a lawsuit at any time, and the best that an association (or anyone) can do is to make that suit less likely to succeed.
Should Our Pool Open at All?
Given these many concerns and issues to be addressed, the increased costs, and the major risk involved, some boards may be wondering if it is even a good idea to open the pool at all. Heartbreaking as that idea may be, the alternative (opening without understanding the risks and end up with a dangerous situation, understaffed, or becoming a virus hot-spot) could be worse. Making a difficult decision like this should not be taken lightly, and the Board should consider all different avenues and pieces of information. Talk with the pool management company, your insurance agent, trusted legal counsel, and even owners and nearby pools to get as much information as possible. If your board determines that it is in the association’s best interests not to open, convey to your owners exactly why, and make every effort to pass any reduced cost back to the owners if possible. You will want to explain to owners that there are still costs associated with keeping the pool healthy and free of insects, mold, and more.
Summing it Up
Whether you are talking about being an association board member, an owner, or simply a human being during the COVID-19 pandemic, there are no easy answers. Use the information available, rely on your trusted advisors, have patience, and make the best decisions possible for your association.
Feel free to contact us with questions.