Community Pool Facilities and COVID-19

By Carolyn B. Goldschmidt
May 7, 2020

Greetings from all of us at Goldschmidt|Shupe as global attempts to contain and limit the COVID-19 virus have changed most facets of our day-to-day lives and also impacted the business dealings and common area management of homeowners associations throughout southern Arizona. From Governor Ducey’s latest communications, it appears that his previous Executive Order will be modified soon allowing communal swimming pools and hot tubs to be used again. We are hearing from community managers and Board members that residents are anxious to be able to use these facilities now that the temperatures have risen and because exercising in the swimming pool is important to many residents’ health maintenance regime.

Needless to say, the threat of COVID-19 transmission is still with us. Therefore, even if swimming pools and hot tubs can be opened again, Boards of Directors and community managers need to consider whether it is prudent to do so. Depending on the size, location and usage of common area swimming pools, it may not be reasonably safe to open even if governmental restrictions are lifted. If a Board decides to open the swimming pool area to residents, safeguards to maintain social distancing and proper sanitizing may need to be implemented until there is no longer a need to do so.

It is important to realize that in addition to the Association’s legal duty to maintain the common areas in a reasonably safe condition, if there should be a claim against the Association that a resident contracted the COVID-19 virus due to negligent practices by the Association, the Association’s liability insurance will likely not cover the claim. This is because most liability policies specifically exclude coverage for claims arising from communicable diseases.  Of course, each Association needs to check with its insurance carrier to confirm the scope of liability coverage.

In conclusion, until Governor Ducey issues an order expanding outdoor exercise activities to include swimming and use of a hot tub, your Association should not open these facilities. To prepare for opening, it may be prudent to form a Pool Committee, if your Association does not already have one, to formulate, implement and oversee protective measures for residents. Here are some procedures and rules to consider as a starting point:

1. Community residents only. No guests.
2. Establish hours that pool area(s) will be open for residents’ use.
3. Limit of two people in the pool or hot tub at a time.
4. Devise a time reservation sign-up sheet on a clipboard in the pool area.
5. No use of bathrooms.
6. No lounging (consider having furniture removed or stacked if this is an issue).
7. Having hand sanitizer available so residents can sanitize hands after opening the  gate. (Leaving the gate(s) open/unlocked is not an option per the Pima County health code.)
8. Establish a schedule to regularly sanitize railings and other surfaces that are in regular use.

Good luck in navigating the issues that will be arising as the Stay at Home and Social Distancing governmental and public health orders are relaxed, and let us know if we can be of assistance.

Disclaimer: The information provided is not, nor is it intended to be, legal advice. No attorney-client relationship between the reader and Goldschmidt|Shupe is intended. You are not considered a client of our law firm until you have signed a written agreement accepted by us.