For more than a year, community associations have been struggling with managing the use of their pools amidst the COVID-19 pandemic. With ever-changing regulations, vacillating infection rates, and differing opinions on boards and within communities, the decision may be overwhelming. However, with some simple education and adherence to guidelines, community associations can feel confident in reopening their pools while at the same time limiting liability. Last year, we provided information to assist community associations, and this year, with updated orders from the Governor, we hope to provide the most current information for community associations to make fully informed decisions.
On April 21, 2021, Governor Northam issued his Fifth Amended Executive Order Seventy-Two. The language in the Order mirrored that of last year’s order regarding pools:
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.
The Governor has also amended the distribution entitled “Guidelines for All Business Sectors,” now on its sixth version. While there is a question as to whether or not community associations are “businesses” as contemplated in the flyer, it provides practical applications that community associations can use to establish best practices. According to the updated guidelines, pools must impose the following safeguards. The updated changes from last year’s flyer are bolded:
- Post signage at the entrance that states that no one with a fever or symptoms of COVID-19, a positive diagnostic test for the virus that causes COVID-19 in the prior ten days, 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 six feet (reduced from ten) of spacing between persons who are not members of the same family (many community associations have removed seating altogether to avoid this requirement);
- Employees working in customer-facing areas are required to wear face coverings over their nose and mouth. Lifeguards responding to distressed swimmers are exempt from this requirement. They must have a hand washing station or hand sanitizer available;
- Provide hand sanitizing/washing stations, including where shared equipment is utilized; and
- Facilities should screen patrons for COVID-19 symptoms, positive tests within 10 days, or known exposure within 14 days prior to admission to the facility. Patrons should be asked if they are currently experiencing:
- Fever (100.4 degrees Fahrenheit or higher) or a sense of having a fever;
- A new cough that cannot be attributed to another health condition;
- New shortness of breath;
- New chills;
- New sore throat; or
- New 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.
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.