After much anticipation, North Carolina Governor Roy Cooper issued Executive Order 141, ("Order") on May 20, 2020, labeled "Phase 2", which, among many other things, allows for the reopening of certain businesses and lifting the stay at home order. This Order is in effect from May 22, 2020 until June 26, 2020, unless altered by the Governor. The full text of the Order can be found here.
With this Order, retail businesses are allowed to open to the public, with restrictions as the Order sets forth. Pertinent to community associations, Section 6 E of the Order allows for the operation of indoor and outdoor pool facilities, but only if in compliance with the requirements of Order. The requirements to open pools are fairly clear, and are as follows:
1. Indoor and Outdoor Pools May Open. During the effective period of this Executive Order, indoor or outdoor pool facilities (whether stand-alone or part of other facilities) may operate, but must be in compliance with this Subsection.
2. Requirements. While this Executive Order is in effect, all open pool facilities
must do all of the following:
- Limit the user capacity in the pool to no more than 50% of maximum occupancy as determined by fire code (or, when fire code number is not known, thirty-three (33) people per one thousand (1000) square feet in deck areas, wading pools and splash pads), and a maximum occupancy in the water often (10) people per one thousand (1000) square feet. This user capacity is the Emergency Maximum Occupancy for the pool facility.
- Follow the Core Signage, Screening, and Sanitation Requirements as defined in this Executive Order.
3. This Subsection applies only to shared pools in commercial settings or at residential complexes. It does not apply to family pools at people's homes. The "Core Signage, Screening, and Sanitation Requirements" are listed in Section 1, subsection 2 of the Order, and are as follows:"Core Signage, Screening and Sanitation Requirements" are the following actions which establishments open to the public under the terms of this Executive Order must follow, namely:
- Post the Emergency Maximum Occupancy in a noticeable place.
- Post signage reminding attendees, customers, and workers about social distancing (staying at least six (6) feet away from others) and requesting that people who have been symptomatic with fever and/or cough not enter.
- Conduct daily symptom screening of workers, using a standard interview questionnaire of symptoms, before workers enter the workplace.
- Immediately isolate and remove sick workers.
- Perform frequent and routine environmental cleaning and disinfection of high-touch areas with an EPA-approved disinfectant for SARS-CoV-2 (the virus that causes COVID-19).
NCDHHS has prepared sample signs and a sample screening checklist questionnaire, available at https://covid 19.ncdhhs.12:ov/guidance, that may be used to meet some of the requirements above. Businesses or operations do not need to use the NCDHHS sample signs and questionnaires to meet the requirements of this Executive Order. This Order also contains an Enforcement section, subjecting violation of the Order to prosecution and is punishable as a Class 2 misdemeanor.
In addressing this Order, community association boards should understand, first and foremost, that the Order is permissive; there is no mandate to open. What this means, in the end, is that it is the association board of directors decision to open the pool. Association governing documents, more specifically, the declaration of covenants, conditions and restrictions ("CCR's"), almost always grant owners or members the right to use the common area and facilities, which includes the pool, subject to the rules and regulations of the association. Thus, there is a potential conflict between owner's rights and board authority.
We are of the opinion that, if an association has a pool, the board should lean toward opening such pool unless there is a reasonable, sound basis not to do so. Members of an association pay assessments; those assessments are used to pay for and maintain the pool and facilities. Many members likely bought into the community with pool access as a significant, decision-making factor. Thus, the board should consider keeping the pool closed only if it can articulate sound reasoning to keep it closed. We provide some examples of such reasoning below. Boards of directors should use their sound business judgment when making such a decision, and we urge boards to discuss such matters with association counsel, managers, and pool vendors. The North Carolina Non-Profit Corporation Act, section 55A-8-30, provides protection to directors who rely on experts, such as counsel, management, and vendors, when making decisions. The full text of the NC standards for directors can be found here.
We are further of the opinion that those pools that have attendants or lifeguards should strongly lean toward opening. These associations that have pool attendants or lifeguards must discuss the requirements of the Order with the companies that employ the lifeguards and attendants, and the attendants or lifeguards should be instructed to take reasonable steps to comply with the capacity and sanitization requirements in the Order, using everything from a sign in sheet, to a clicker taking count of attendees, and monitoring the social distancing on the deck and in the pool. Signage showing the Emergency Maximum Occupancy, social distancing and symptomatic language must be posted. We recommend that associations or their pool management companies conduct the daily screening of the attendants and employees and keep a log for reproduction as needed. Boards should work with their pool management company to make sure it has access to such documentation if needed. Boards should remember that lifeguards are there to watch those in the pool, not to enforce distancing requirements. Thus, there may be a need to hire additional personnel to perform the duties required by the Order. Again, communication with the manager and pool management is essential. For pools without attendants, or for pools managed by companies that will not provide the personnel needed to monitor the requirements of the Order, the decision whether to open is more difficult. Placing signage at the appropriate locations should not be an issue. However, it is obvious that for pools without an attendant or other type monitoring, the association cannot enforce the capacity and social distancing limits. Certainly, the board can solicit volunteers from the board itself, perhaps the pool committee if one exists, or even from the membership, to monitor the pool to ensure the capacity and distancing requirements are being followed, and perform the sanitization procedures as described. If such volunteers are utilized, communication to the membership identifying these individuals, and explaining the authority that these individuals have, is needed.
For pools without an attendant, and without volunteers, the decision is the most difficult. Members will likely be clamoring for the pool to be open, while others will be concerned about safety and spread of the virus. Without an attendant or consistent, scheduled inspection by volunteers, it is doubtful that an association will be able to comply with the letter of the Order. Certainly, board members or other volunteers may periodically sanitize areas and look to enforce capacity limits. This simply may not be enough unless there is constant monitoring with daily logs to show compliance. Based upon the language in the Order, we do not see roving patrols of police looking to enforce these requirements. Where we see potential for official involvement is in the situation of an owner who calls the police because of something that owner observes, or perhaps even a disgruntled owner that has had previous problems with the association and who is looking to express their dissatisfaction in manner. It is unclear how government officials will enforce the Order. Will it issue a citation to the board of directors? The association as an entity? Pool attendants? Those members in attendance? We, like everyone, will see how it plays out over the next month.
Whether the pool has an attendant or not, if the directors have information that the requirements are not being followed by those using the pool, it can and should take remedial measures allowed by the CCR's and Planned Community (or Condominium) Acts, using the hearing process and sanction, potentially including the suspension of pool privileges and fines. Further, as stated above, the board has the discretion to close the pool if it believes, in its reasoned business judgment, members will not comply with the requirements in the Order. We suggest that signage include language that complaints be brought to the attention of the attendant or management. While we are less than certain that execution of a waiver/hold harmless document, executed by the members prior to entering the pool, is fool proof legal protection for the association, we recommend that boards consider requiring members to execute it, and an acknowledgement by the member of awareness of the rules, before the member will be able to enter the pool. Execution of the document itself may go a long way to ensuring cooperation among the membership during this time. Boards should work with your attorney in the drafting of such document to ensure all the required language is present. In addition to the Order, the NCDHHS has published requirements and guidelines for pool operation. The requirements are the same as those in the Order. The guidelines are recommendations (such as spacing of chairs, encouraging cloth face coverings, checking and refilling hand sanitizers, etc.), meaning they are encouraged, but not required. Boards and managers can, and should, review those via this link:
We encourage all boards to follow the guidelines, not just the requirements.
If the board decides to not open the pool, it should document, and publish to the membership, its reasons. These reasons could, and likely should, include, that the board has continuing safety concerns, perhaps due to the demographic of the community, and lack of personnel to effectively monitor the pool to ensure adherence to the Order's requirements. If the board has taken the pulse of the community prior to making its decision, such information should also be considered and documented. We believe that the repercussions for not opening the pool to be either the pursuit, by the members, of a court order requiring the board to open the pool, to the calling of a special meeting to remove the board and elect a new board. Calling such special meetings properly, require following procedures set forth in the CCR's and statute and take time to implement. While it may happen, we do not believe it is likely. As to the pursuit of a court order, considering the public safety concerns prevalent at the moment, and the (hopefully) temporary nature of the Order, we believe such suit would likely fail. Again, associations should consult with counsel in making any decisions regarding the opening, or closing, of the pool. As this Order is temporary, we believe that when "Phase 3" starts, there will be a lightening of restrictions. This will also mean that boards that have chosen to keep the pool closed will need to revisit that decision. Not to sound like a broken record, but consult your association attorney when make such decisions
One final note: based upon the language in the Order, association clubhouses and gyms must, in our opinion, remain closed at this time. We hope everyone has a safe and happy Memorial Day! Please contact us if you have any questions. As events continue to unfold, we will provide further updates.