Memorial Day weekend, which marks the beginning of pool season in the Chicagoland area, has now come and gone. This year, however, the “new normal” of the COVID-19 virus has forced many boards to re-examine whether or not the pool should open at all in 2020.

The guidance for associations is scattered and inconsistent, leading most boards to take the cautious approach and decide not to open the pool. Moreover, public pools remain closed in Illinois. While public pool reopening does not bind private community associations, the actions of the state and local municipalities should be the primary source of guidance for association boards. It merely becomes an issue of association liability – how far is the association willing to “go out on a limb” to reopen and risk a lawsuit?

Before Illinois and Chicago issue pool reopening guidelines, we want to answer some basic questions to assist boards with the decisions they will be forced to make in the coming weeks.

1. Is the board required to reopen the pool this summer?

No, not at all. The board is not obligated to reopen the pool if it determines the health and safety of the association members are best served by keeping the pool closed. Despite demands some owners may make for the board to open the pool, the board is not obligated to give in to such demands. The board must decide what is best for the health and safety of the occupants as well as the fiscal health of the association.

The board should also consider the cost/benefit analysis of reopening the pool. If, for example, the pool is not able to reopen until mid-summer (July, for example), and when it does reopen, usage will be strictly limited to a small number of people at any given time, the board can consider whether that limited use (8 weeks or so with only a handful of folks able to use the pool at any given time) is worth the cost or refilling, maintaining, monitoring, and draining the pool. The board can make the decision that the economics of pool reopening in the summer of 2020 made it such that the better decision for the association was to keep it closed entirely.

2. Can the board fill the pool and choose to keep it closed until Illinois decides to reopen pools?

Yes, the board can have the pool refilled while requiring that it remain closed until further notice. Keeping the pool closed is a process no different than boards have used to limit access to fitness facilities, party rooms and other amenities during COVID-19. But bear in mind the added difficulty (and liability) of having a filled pool that must remain unused.

3. Must the community association mirror state and local regulations? Should we do so?

A private community association is not bound to adhere to the same regulations and guidelines as public pools. However, we do recommend that the association generally mirror the guidelines under which public pools operate to limit association liability exposure. The CDC pool guidelines, while very rigorous, should also be considered and, where possible, implemented to minimize virus spread and liability exposure.

4. If the association decides not to reopen the pool, must we refund common expenses to the unit owners?

No, absolutely not. There is no basis for unit owners to demand a refund of common expenses if the association limits access to certain common elements to protect the health, safety and well-being of the association membership. It is bound to happen – owners demanding a refund for the “money the association saved by not opening the pool, but there is no obligation to refund that money (nor do we recommend doing so).

5. What are the association’s liability exposures should it decide to reopen the pool?

This is a large question with an extensive answer. Thus, we’ll state, right from the start, that it is anyone’s guess exactly what types of lawsuits will surface after the COVID-19 pandemic subsides, and how judges decide those cases.

Having said that, an association’s main liability exposure is a lawsuit by individuals who use the pool or who disagree with the board’s choices related to reopening the pool. Such lawsuits will likely take the form of either: (i) a personal injury lawsuit from an individual alleging he or she contracted COVID-19 while using the pool, or (ii) a breach of fiduciary duty lawsuit against the board and association for its decision to reopen (or not reopen) the pool facilities.

Whether insurance coverage will be available to cover such lawsuits / damage awards is another question. There are two types of association insurance coverage at issue with such claims: (i) the general liability policy, which protects against personal injury on association property, and (ii) the directors’ and officers’ policy (commonly called “D&O” insurance).

Most general liability policies already exclude coverage for transmission of a communicable disease, which would likely include a COVID-19 transmission claim. If your general liability policy does not already exclude it, be prepared for your next policy renewal to contain that exclusion. This means that if an individual sues the association for damages for having contracted COVID-19 in the pool if the individual prevails in the lawsuit, the association’s liability policy will not pay the damages award. Now, bear in mind, it would be challenging for plaintiff to successfully prove he/she contracted COVID-19 in the association swimming pool, but the limitation of insurance coverage is a consideration for the board.

The D&O policy, which provides legal defense for boards and associations in the case of a lawsuit, is more likely to kick in and protect the association depending on the lawsuit. If we are using the example from above (a personal lawsuit by a person claiming he/she contracted COVID-19 in the pool), the D&O may not cover legal defense, as most D&O policies already exclude personal injury lawsuit defense. If, however, an individual alleges a breach of fiduciary duty claim against the board or association, the D&O policy will likely cover the legal defense of the board and association.

Pay careful attention to the association’s insurance policy renewals this year, as we expect insurance companies to revise policies to limit coverage for COVID-19 related claims.

6. Assuming the association is eventually permitted (by state guidelines) to open the pool and the board makes the decision to do so, what are the best practices to avoid liability?

The association should follow the state and local municipality guidelines, as well as incorporating the CDC guidelines for swimming pools. However, at a minimum, some guidelines to consider are:

  • No guests and visitors should be allowed to use the pool;
  • Consider removing association pool furniture and require every individual using the pool to bring his/her chair. Doing so minimizes the amount of furniture or high-touch services the association is expected to disinfect;
  • Hire a pool attendant or to monitor usage and limit the capacity to meet recommended guidelines; and
  • Sanitize all high-touch areas surfaces.

7. Should the association draft and adopt new rules and regulations for pool or other common area amenity usage (such as face mask usage, social distancing minimums, etc.)?

As of now, we are recommending against drafting and adopting new rule language as part of the association documents. Our reasoning is simple: any new rule adopted as part of the association documents must be enforced, and any failure to do so may result in a breach of fiduciary duty lawsuit against the association. It can require a great deal of time and administrative resources to monitor and enforce such rules (in addition to the duties already expected of volunteer board members and busy managers). Accordingly, posting policies and guidelines for face mask and distancing requirements is likely the best course of action for associations to both minimize liability exposure and ensure all are informed of best practices.

As always, this article is subject to change as the present best practices, policies and recommendations for reopening common area facilities continue to evolve. Public health officials and state and local authorities should be the lodestar for any board considering what to do with the swimming pool for the summer. Stay abreast of your state and local authority guidelines and keep in touch with your association’s attorney to determine what works best with your association.

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Nicholas P. Bartzen

Nicholas Bartzen is the founder of Altus Legal, LLC and exclusively represents Illinois community associations. He currently serves as the co-chair of the Chicago Bar Association’s Condominium...

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