By Melissa S. Doolan, Esq.
As the number of COVID-19 cases decline and the number of individuals fully vaccinated increases, everyone is looking forward to enjoying the community pool this summer. The question on the mind of board directors and community managers is whether to fully reopen the association’s pool and whether to leave any limitations in place. While associations seek to have their members and guests back utilizing the pool this summer, directors and managers do not want to be the epicenter of a super spreader event or open the association to liability. Therefore, board directors and managers should take the following into consideration when deciding whether to reopen the community pool.
First, on April 5, 2021, Governor Ducey signed SB1377 into law. This statute provides some protections to an association from COVID related lawsuits. SB1377 bars any civil liability for as to a person or business that “acts in good faith” from lawsuits related to COVID-19, unless the suing party proves by “clear and convincing evidence” that the person or business failed to act or acted with willful misconduct or gross negligence. SB1377 provides that a person or business has the presumption of acting in good faith, if the person or business “adopted and implemented” reasonable policies related to COVID-19.
Before the board of directors vote to reopen the pool, the board should adopt rules to assist in limiting the spread of COVID-19. The Centers for Disease Control and Prevention (“CDC”) and Arizona Department of Health Services (“ADHS”) have published guidelines on pool reopening that provide associations with recommendations on rules to limit the spread of COVID-19. For example, the CDC and ADHS recommend posting signs to remind individuals that are sick, exhibiting COVID-10 symptoms, or been exposed to someone with COVID-19 in the last 14 days to not use the pool. Also, the board and community manager should be ready to act swiftly to amend its rules or close the pool again, if the number of COVID-19 infections increase again.
Each association is unique and there is not a one size fits all solution to reopening the community pool. We encourage each association to consult with its insurance agent and legal counsel in adopting rules to reopening the pool. These rules and/or policies may afford the association the legal protections under SB1377. But just as important, with reasonable rules in place and individual accountability, your community members should be able to enjoy a cool dip in the pool this summer.