Please Note: This blog is designed for general information only. The information presented at this site is not intended to provide legal advice or a legal opinion and should not be construed as the formation of an attorney-client relationship. Specific questions should be directed to an attorney at NowackHoward, LLC or to another lawyer.
Community swimming pools are subject to 21 mandatory measures in Governor Kemp’s May 28 Executive Orderimposed on all business establishments, corporations, non-profit corporations, and organizations that are not Critical Infrastructure that have in-person operations. These requirements can be found on pages 12-13 here. HOA and condominium associations, as the owner or operator of community pools, are responsible for implementing, adhering to, and enforcing these requirements. Of these measures, there are two that our HOA lawyers believe associations will have the most difficulty following:
- Prohibiting Gatherings during hours of operation;
- Enforcing Social Distancing of non-cohabitating persons while present on such entity’s leased or owned property;
*Under Governor Kemp’s May 28 Order, effective June 1, the definition of “Gathering” changed from 10 to 25 personswho are physically present in a space where all persons gathered cannot maintain at least six feet of distance between themselves and any other person. Importantly, associations are responsible for enforcing social distancing of non-cohabitating persons while on the association’s property by requiring all non-cohabitating persons to keep a distance of six feet from one another. This requirement to enforce social distancing applies no matter how many persons are at the pool.
The new Order extends the current Public Health Emergency declaration through July 12.
Associations may lack the resources necessary to prohibit Gatherings during hours of pool operation, prohibit unnecessary person-to-person contact, and enforce Social Distancing of non-cohabitating persons while at the pool. These mandates will apply regardless of whether community pools are ordinarily staffed with lifeguards. Boards should consider whether their associations can staff their pools adequately with monitors or other personnel necessary to carry out the Governor’s requirements, in addition to providing any lifeguard coverage.
If an association opens and operates the pool but does not comply with the Governor’s mandatory measures, HOA lawyers caution that operation of the community pool will be considered an intentional act to violate the May 28 Executive Order. If a person contends that he/she contracted COVID-19 at the pool and the pool was being operated in violation of these requirements, the individual members of the Board could be sued for not acting in good faith and in the best interest of the Association. While the burden of proof to win such a case makes it unlikely a person would win, because no insurance would be available to pay for the directors’ legal costs, the cost of defense could debilitate the association.
In addition, violation of the May 28 Executive Order is a misdemeanor. So, aside from a civil lawsuit for damages, the Board members are subject to being issued individual citations.
Georgia Department of Public Health Guidance
The Georgia Department of Public Health and local county health departments regulate public swimming pools in Georgia, including community association pools. To reduce the risk of spreading COVID-19 at public swimming pools, the Department of Public Health developed a COVID-19 Guidance document that can be found here. These mitigation measures are based on the Governor’s Executive Orders and the Centers for Disease Control and Prevention’s guidance on operating and managing public pools, hot tubs, and water playgrounds during the pandemic.
The Georgia Department of Public Health strongly recommends extensive measures for all operators of public swimming pools. For example, these measures include some of the following:
- Employ cleaning and disinfection measures to reduce patron exposure.
- Clean and disinfect frequently touched surfaces at least daily and shared objects each time they are used. For example:
- Handrails, slides, and structures for climbing or playing
- Lounge chairs, tabletops, pool noodles, kickboards, and drinking fountains
- Door handles and surfaces of restrooms, handwashing stations, diaper changing stations, and showers
- Limit locker room use when possible; design facility plans addressing access and egress.
- Require patrons to spray showers with a provided cleaning spray after use.
- Require workers to clean and sanitize bathroom and shower areas regularly throughout the opening hours in addition to the regular cleaning schedule.
- Clean and disinfect frequently touched surfaces at least daily and shared objects each time they are used. For example:
- Modify the layout of the facility to promote social distancing.
- Change deck layouts to ensure that in the standing and seating areas, individuals can remain at least 6 feet apart from those they don’t live with.
- Ensure that the layout will not impede the four foot of unstructured decking required around the pool perimeter for emergency rescue.
- Introduce physical barriers and guides to prohibit gathering.
- Provide physical cues or guides (for example, lane lines in the water or chairs and tables on the deck) and visual cues (for example, tape on the decks, floors, or sidewalks) and signs to ensure that staff, patrons, and swimmers stay at least 6 feet apart from those they don’t live with, both in and out of the water).
- Monitor communal or shared spaces for social distancing.
- Stagger use of communal spaces (for example, in the water or breakroom), if possible, and clean and disinfect frequently touched surfaces regularly (based on daily usage but at least once during hours of operation and before opening). Clean and disinfect shared objects each time they are used.
- Establish contacts for patrons and staff members.
- Assign monitoring responsibility to an appropriate staff member, such as a trained operator or assigned assistant.
- Use lifeguards for water safety only, ensuring that lifeguards who are actively lifeguarding are not also expected to monitor handwashing, use of cloth face coverings, or social distancing of others.
- Designate a COVID-19 Point of Contact staff member to be responsible for responding to COVID-19 concerns. All staff should know who this person is and how to contact him or her.
- Assess communication systems and put methods in place.
- Have staff, patrons, and swimmers self-report if they have symptoms of COVID-19.
- Have staff report a positive test for COVID-19, or if they were exposed to someone with COVID-19 within the last 14 days.
- Discontinue organized events or classes, including organized sports competitions, swim meets, celebrations, and party bookings. Consult with your local jurisdiction, sport governing or certifying body for requirements or recommendations to determine if events, such as aquatic fitness classes, swim lessons, and swim team practice can commence while maintaining the requirements and intent of this guidance.
Of course, always consult with professional HOA lawyers when in doubt of compliance. Our expert HOA lawyers are standing by to answer any questions you have and to offer guidance to remain compliant with changing regulations and mandates. Give at (770) 863-8900 or fill out our contact form online to get in touch with one of our HOA lawyers – you’re in good hands.