Reopening Amenities: The Debate Continues

Published on: July 25, 2020

By Mark Einhorn

Should community associations reopen amenities that were closed during pandemic shutdowns? Most communities that have amenities appear to be grappling with that question. Boards are balancing the legal liability risks, contagion concerns and costs of reopening amenities against the pressure from owners demanding access to them.

When we discussed this issue in May, we suggested that associations opting to reopen should closely follow the guidelines issued by state and federal agencies. The Centers for Disease Control and the state of Massachusetts have since issued new or updated guidance.

You can find the CDC’s general COVID guidance here. The Massachusetts guidelines (for phase three of the four-part state reopening process) cover multiple business sectors. Those most relevant for community associations deal with pools and fitness centers and health clubs. These detailed requirements, which apply to condominium pools and fitness centers as well as to public facilities, provide a best practices benchmark for community associations and a potential defense against claims that in reopening their amenities, boards negligently failed to control contagion risks.

Pools and Fitness Centers

There is nothing surprising about the state guidelines, which emphasize hygiene and social distance. But the following examples illustrate how extensive, potentially burdensome and costly they may be for associations that implement them. The seven pages of requirements for swimming pools include:

  • Face masks – required when social distancing isn’t possible outside of the pool, but not required while in the pool.
  • Capacity limits – 40 percent of the maximum number of occupants allowed for the pool area; 50 percent of the maximum allowed for locker rooms and changing areas. Procedures to monitor and control access are “encouraged.”
  • Hygiene – daily cleaning and disinfecting required for “frequently touched surfaces”; cleaning of shared objects required “each time they are used.”
  • Staffing – lifeguards responsible for monitoring pool safety should not be responsible for monitoring social distancing or other health and safety behaviors of patrons. “Other staff should be assigned to this task.”

Guidelines for fitness centers include:

  • Occupancy limits – 40 percent of the facility’s maximum occupancy, but occupancy in any enclosed space in the facility can’t exceed 8 people per 1,000 sq. ft. The occupancy limits include staff members as well as users of the facility. Monitors must ensure that occupancy limits are enforced.
  • Social distancing – Exercise equipment should be arranged to create 14 feet between exercise areas – 6 feet if the areas are divided by physical barriers.
  • Hygiene – equipment must be sanitized between uses.

Monitoring and Cleaning

Following these guidelines will clearly increase both staffing and operating costs. Fitness rooms will require intensive regular cleaning and monitors to ensure that hygiene and social distancing protocols are followed. Volunteers may perform those functions in some communities, but that may not be feasible or desirable in others and presents liability risks for communities. Even if monitoring isn’t a problem, the occupancy limits and equipment spacing requirements may make it impossible to operate smaller fitness rooms.

The requirements for pools are even more problematic. Some associations have estimated that the additional staffing required for monitoring and cleaning could increase their pool expenses by 25 percent or more – a stretch that budgets already strained by COVID-cleaning expenses and rising delinquencies (another byproduct of the virus) may not be able to accommodate. With half the swimming season gone, many boards have decided it makes no sense to reopen their pools; others have viewed this as a rationale for reopening, because the operating costs for a shortened season will be less or roughly equal to the pre-COVID amount they had budgeted.

A national CAI survey focusing on pools, conducted from late June until early July, found that only 7 percent of the 2,200 communities responding had opened their pools on time; 30 percent had opened late and more than 40 percent had decided to keep their pools closed altogether. More than a third of the communities that reopened their pools said they incurred additional costs for which they had not budgeted.

Cost isn’t the only barrier associations have encountered along the reopening path. Many are struggling to find lifeguards because virus fears are reducing the number of college-aged kids willing to do the work, and because the training programs required for them aren’t available. Some boards have reported that the staffing companies they have used to provide lifeguards in the past are insisting on broad indemnification – not just the standard indemnification for negligence claims, but indemnification for gross negligence and intentional acts as well. That requirement would be off-putting for associations, to say the least, under normal circumstances. But in the absence of insurance for COVID-related claims (insurers say there isn’t any), it is unthinkable.

Another peripheral concern may further complicate the reopening decision for some communities: If they reopen a fitness center used mainly by adults, would they also be required to reopen (and provide the required staffing and cleaning) for playground equipment used by children? And would they face potential Fair Housing Act discrimination charges if they fail to do so?

When we discussed the reopening issue in May, we suggested that the negatives would probably tip the balance in most associations toward keeping their amenities closed. Our assessment hasn’t changed. But the decision hasn’t gotten any easier for boards either. Some condo owners look at a pool filled with water and a fitness room filled with idle equipment and wonder: “Why not just open the doors?”

Communication and Context

Communication with owners is essential. Boards that are debating the reopening question shouldn’t have that discussion in a vacuum. They should make sure owners understand the issues board members are considering and the competing concerns they are weighing. Share the state guidelines for pools and fitness centers. Owners demanding access to amenities might feel differently if they understand how the best practices required to reopen them would affect both the experience of using the facilities and the cost of operating them.

Perhaps most important, boards should put the amenities question in the broader context of a world in which infection rates are still rising in many parts of the country, the economy is struggling and the outlook is uncertain, even in states like Massachusetts that seem to have done a good job of taming the virus, at least so far.

A closed swimming pool in any community is just one small piece, and not the most important one, in a huge global puzzle we’ve never seen before. No one has the solution to this puzzle; the best boards and managers can do is try to ask the right questions, consider the needs of their community, assess the costs they can afford and the risks they are willing to assume – and hope the puzzle will look a lot less complicated in September or December or January than it looks today.

Marcus, Errico, Emmer & Brooks specializes in condo law, representing clients in Massachusetts, Rhode Island, and New Hampshire.

Mark Einhorn