It is important for a community association to make a distinction between an essential facility and a nonessential facility during the COVID-19 pandemic. Every community is different, and the risks vary when it comes to their common areas and amenities. “While it may not be reasonable to close down the lobby in a condominium, swimming pools are not essential during this time and can be closed,” says Matt D. Ober, a partner with Richardson|Ober|DeNichilo in Pasadena, California, a fellow in CAI’s College of Community Association Lawyers (CCAL).

The Centers for Disease Control and Prevention (CDC) says there’s no evidence that COVID-19 can spread through the use of pools and hot tubs and that “proper operation, maintenance, and disinfection (e.g., with chlorine and bromine) of pools and hot tubs should remove or inactivate the virus that causes COVID-19,” but many associations have erred on the side of caution and closed pools until further notice.

“We just made the decision to close our pool, hot tubs, and sauna,” says Steve Banahan, president of Snowbrook Village Condo Association in Carrabassett Valley, Maine. Even though the information Banahan and his team gathered from reliable sources says the pool and hot tub water could be disinfected with proper use of chemicals, “The difficulty came in keeping all the surfaces clean. We need to protect our staff, owners, and renters,” he adds.

It’s important to follow what your state or local government and health officials have advised regarding COVID-19, according to James H. Slaughter, a partner in the law firm of Black, Slaughter & Black in Greensboro, North Carolina, and a CCAL fellow. “If someone gets sick, the likelihood of the association being liable is very small. That’s because it’s difficult to prove the cause of any specific illness,” he adds.

According to Joel W. Meskin, CIRMS, managing director for community association insurance and risk management at McGowan Program Administrators in Fairview Park, Ohio, and a CCAL fellow, it is imperative that community associations consult with legal counsel and provide a written position on this issue, specifically if the board wants to keep the pool open. 

“The legal consultation should include whether there are any federal, state, or local regulations that are applicable and or governmental orders that address this issue. In a state with a lockdown order, we would presume, although not assume, that it would be implied that closing the pool is included, even if not expressly stated,” says Meskin.