Top 5 Myths and Misconceptions About Operating Neighborhood Pools During Phase II

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With summer in full swing, North Carolinians are looking for ways to beat the heat safely while navigating COVID-19 social distancing protocols.  On May 20, 2020, Governor Cooper issued Executive Order No. 141 that allowed neighborhood pools in North Carolina to operate during Phase 2, as long as the homeowners association (HOA) complies with certain rules.  Unfortunately, sometimes HOAs are misinformed or misunderstand their legal obligations under the Governor’s Order.  Below, I addressed the top myths and misconceptions about operating the community pools in North Carolina during Phase 2.

Monitoring Pool Capacity

The Governor’s Order does not require that the HOA have someone at the pool at all times to monitor the capacity.  The Order requires that each pool limit capacity to 50% of the overall capacity under the fire code and post the maximum number of individuals allowed in the pool and the surrounding areas in a noticeable place.  If the fire code allows there to be 30 people in the pool and 70 people on the surrounding deck, then occupancy will be limited to 15 people in the pool and 35 people on deck during Phase 2.  

Cleaning Requirements

The Governor’s Order requires that there be “frequent and routine” cleaning and disinfection of high-touch areas.  The Order does not require that a professional pool contractor perform the cleaning.  Although some HOAs have the resources to hire professionals to clean multiple times a day, many HOAs have chosen to have the members in the neighborhood perform routine cleaning.  How often the high touch areas must be cleaned is going to vary depending on the circumstances.  A pool with high traffic is likely to need more frequent cleanings than a less-visited pool.  However, not all cleaning supplies will suffice.  The Order requires that an EPA-approved disinfectant for COVID-19 be used to clean the high-touch areas, such as certain disinfecting wipes and sprays.  A list of over 400 EPA-approved cleaners can be found here.  

Decision of HOA Vs. Property Management Company

Many HOAs hire property management companies to help with management of their neighborhood. While a property management company may be able to provide insight and guidance about the matter, the ultimate decision of whether to open the pool is for the HOA to decide, unless there is a contract between the parties that states otherwise.  Therefore, it is very important that the Board of Directors for the HOA read the relevant portions of the Governor’s Order, and consult legal counsel if they have any questions, in order to make a well-informed decision.  

Neighborhood Involvement

While the Board generally has the authority to make such decisions under its governing documents, the Board should not disregard the opinions and wishes of the people in the neighborhood.  The HOA’s Board of Directors has a duty to act on behalf of the best interests of the members of the Association that they represent.  Prior to making any decisions about the pool, the Board should seek input from the members of the neighborhood.   

Liability

HOAs frequently express concerns about the HOA’s liability if someone claims that they contracted COVID-19 from the pool.   House Bill 902, which became the law on July 2, 2020, substantially limited the liability of HOAs for their neighborhood pools.  Generally, HOAs cannot be held liable if someone claims that they contracted COVID-19 from the pool.   A few limited exceptions apply, such intentional wrongdoing or gross negligence.  For example, an HOA could likely be found to be engaged in an intentional wrongdoing or grossly negligent if the HOA allowed people who they knew were infected with COVID-19 to swim at the pool.  

Just remember: The key to operating a community pool throughout the pandemic is for the HOA, especially its Board members, to educate themselves about the requirements of the Governor’s Order. I recommend seeking legal advice to determine the proper way to apply the guidelines to your neighborhood pool.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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