“When will the community association pools open?” No question has been on the forefront of community association board members and frazzled parents more. On March 12, 2020, Governor Northam issued an executive order, declaring a state of emergency due to the coronavirus. Five days later, the Governor limited capacity to fitness facilities, and on March 23, completely closed all recreational and entertainment businesses, which included public pools. Then, on June 30, Governor Northam issued his executive order regarding Phase 3 of reopening Virginia, which included the following provision:

Outdoor and indoor swimming pools may be open, provided occupancy is limited to no more than 75% of the lowest occupancy load on the certificate of occupancy and all swimmers maintain at least ten feet of physical distance from others who are not family members.

Community association residents rejoiced, but board members began handwringing at the prospect of potential liability. This article is intended to provide clarity to the issue and give community associations the knowledge and tools they need to decide if and how to open community pools safely.

The Governor’s Guidance

Along with the executive order relating to Phase 3, the Governor issued a flyer entitled “Safer at Home: Guidelines for All Business,” which applies to the opening of aquatic facilities. According to the guidelines, pools must impose the following safeguards:

  • Post signage at the entrance that states that no one with a fever or symptoms of COVID-19, or known exposure to a COVID-19 case in the prior 14 days, is permitted in the establishment;
  • Post signage to provide public health reminders regarding physical distancing, gatherings, options for high-risk individuals, and staying home if sick;
  • Keep hot tubs, spas, saunas, splash pads, spray pools, and interactive play features, including slides, closed;
  • Limit capacity at up to 75% occupancy (when the facility has a certificate of occupancy), provided ten feet of physical distance may be maintained between patrons not of the same household. Free swim is allowed;
  • Seating may be provided on pool decks with at least ten feet of spacing between persons who are not members of the same household (many community associations have removed seating altogether to avoid this requirement);
  • All seating (including lifeguard stations) must be cleaned and disinfected between uses; other high contact areas must be disinfected routinely;
  • Employees working in customer-facing areas are required to wear face coverings over their nose and mouth. They must have a hand washing station or hand sanitizer available;
  • Provide hand sanitizing stations, including at the entrance/exit and where shared equipment is utilized; and
  • Facilities should screen patrons for COVID-19 symptoms prior to admission to the facility. Patrons should be asked if they are currently experiencing:
    • Fever (100.4 degrees Fahrenheit or higher);
    • Cough;
    • Shortness of breath;
    • Chills;
    • Sore throat; or
    • Muscle aches

Community associations can take simple steps to adhere to these guidelines and principles. They should take care to complete proper documentation as prescribed, and should include a written, signed screening form each patron must complete each time they use the pool. Though the additional safeguards may be stringent, many community associations in Virginia have taken on the task of adhering to the regulations in order to provide their residents with the use of the pool.

Liability Considerations

While guideline compliance may be feasible for a community association, many board members fear the potential liability that may arise from opening the pool. This fear is heightened due to the common exclusion from many community association insurance policies for virus related events. Board members are thus concerned that the association (or the board members themselves, individually) will be sued for any liability arising from an individual contracting the virus while at the pool. There are some practical difficulties that arise in bringing a lawsuit based on the contraction of airborne illnesses and proving that the community association negligently caused the illness. First, a plaintiff would have to prove that he contracted the virus at the pool. Given the scope of places from which a person could contract the virus, it may be challenging for a plaintiff to prove that he definitely contracted it at the pool. Second, the plaintiff would need to prove that he contracted it due to the association’s negligence. In other words, the plaintiff doesn’t automatically win merely by proving that he contracted it at the pool; rather, he would have to prove some negligent action or failure to act by the association that caused him to contract the virus.

Board members should also consider two other key issues when making a decision on opening pools.

First, because insurance will likely not cover the defense of a claim based on a virus, the community association will have to pay out-of-pocket to defend any such liability. The costs will include legal fees and costs related to the claim as well as any settlement or judgment that may be rendered as a result. Boards should consider the possibility that, if there is such a claim, and the association’s operating funds are inadequate to cover the costs of defense and settlement or a judgment, they may need to dip into the reserves or perhaps raise future assessments to cover the costs.

Second, boards should consider the fact that many pool management companies are requiring associations to sign a contractual addendum providing that the association will indemnify and defend the pool management company as a condition of the pool management company providing lifeguarding services during the pandemic. This means that the community association would be responsible both for the legal costs associated with any claim as well as any judgment that may be awarded against the pool management company. Practically speaking, in most scenarios, this cost is unlikely to be a significant amount greater than what the community association would have to bear independently. That’s because the community association would already have to incur legal fees in defending itself in the lawsuit, and there would likely be only a modest additional scope of tasks relating to defending the pool manager as well. Also, judgments against joint defendants could very well be a “joint and several” judgment, which means that the plaintiff could collect the entire amount against one party to the exclusion of the other party. In other words, if a plaintiff recovered a joint and several judgment against both the association and a pool management company, the association would be responsible for the entire judgment regardless of the inclusion of the pool management company. There are certain caveats to this relating to the legal doctrine of contribution, but the point is that the association may not necessarily be out any more money by virtue of the pool management company being a defendant than it otherwise could be.

Finally, board members should consider the potential liability exposure to them personally. In short, in most instances, most directors will face an extremely low risk of being held personally liable for having voted to open their association’s pool during the pandemic, and in turn having to personally pay a monetary judgment arising from such. That’s because a claim by a person who contracted the virus at the pool would be made against the association as an entity, not against a director individually. Lawsuits against directors individually for breach of fiduciary duty are a different class of claims. Those claims must, in most instances, be brought derivatively (whereby a member of the association sues in the name of the association). Directors enjoy broad protection from Virginia’s “business judgment rule” (a doctrine that provides protection to directors if they act in good faith in the best interests of the corporation). Moreover, most articles of incorporation contain broad indemnification provisions, and the Virginia Code eliminates the monetary liability of individual directors of community associations in many instances.

Ultimately, the question of opening the pool will be one of weighing the risks and benefits: If the community association feels confident that it can follow the Governor’s guidelines (which will in turn greatly reduce the risk of any COVID-19 related claims) and the board is comfortable with the association bearing the potential liability described above, then the community association can consider opening its pool for resident use. Such a decision may also depend on the type of demand the community association sees from its residents. Either way, community associations would do well to communicate adequately with their residents regarding the decision. Then, at the very least, residents and community associations alike can work together to tackle other issues affected by the virus.