MASSACHUSETTS CONDOMINIUM POOLS ALLOWED TO RE-OPEN ONE JUNE 8, 2020…OR SHOULD WE JUST GO JUMP IN A LAKE INSTEAD

Published on: June 9, 2020

As a boy growing up in Pawtucket, RI, I had a tendency to get on my father’s nerves during the summer.  When he became increasingly frustrated, he would tell me to go jump in a lake.  My brother and I took him literally at his word, and would ride our bikes to what we considered a lake but was actually a reservoir and jump in and get some relief.  Do 10-year-old children do that kind of thing anymore?

We used to beg our father for a pool.  He always said too much work and too much liability.  He said we should become familiar with OPP (other people’s pools).  Unfortunately, none of our friends had pools. As we got a little bit older, we would wait until dark, hop the fence in our backyard and go through the woods until we came to the train tracks.  We would then follow the train tracks to until we came to old the Holiday Inn on Newport Ave in South Attleboro, which of course had a swimming pool.  We would then shimmy the fence and swim in the pool until we ran out of beers or until we were chased out of the pool or the police showed up.

Fast forward to 2020.  We are in a pandemic.  Summer and soaring temperatures are here.  It’s getting hot out there.  Turns out my dad was right.  Swimming pools are a lot of work and present a lot of risk.  Doubly so for condominiums in a pandemic.

Despite earlier reports that condominium swimming pools, which are considered semi-public pools under state law, would re-open on June 26, 2020, it appears that they have the go-ahead to re-open immediately as part of Governor Baker’s Phase II Plan.  That being said, condominium boards and property managers should still check with their local town and/or city, as condominium swimming pools require permits to re-open.  Town’s or Cities may be moving a little more slowly than the State.

Putting aside whether the State is allowing condominium pools to re-open, every condominium must make the call whether it is a wise endeavor.  The pandemic may be easing as are restrictions, but the same may not be true for potential liability from pool re-openings.  The pool restrictions imposed by the State are onerous.  In the event that a condominium gets sued for not following the pool reopening restrictions and someone gets COVID-19 from use of the pool area (and can prove it), it is doubtful that there will be any available insurance coverage to pay such a claim and/or defend such a lawsuit.  Make no mistake about it, the insurers have run from the virus.  That risk and exposure might make a condominium board think twice about re-opening pools during 2020, especially given that the New England pool season is a short one.

For condominium pools that want to re-open, we recommend that condominium boards post signage and have every unit owner sign a waiver.  Whether those waivers are enforceable and would be upheld in a court of law is another matter entirely.  The fact that we cannot guaranty enforceability of pool waivers might provide further reason for the board to consider keeping the pool closed for the season.  MEEB has developed a form waiver and form signage that can be adopted to your pool or other recreational facility.

Another consideration if the pool does re-open is the decision to ban guests or visitors.  This seems to be an easy decision, at least for now.  Why run the risk of increasing liability?

If your pool does re-open, it must follow 6 pages of restrictions issued by the Executive Office of Energy and Environmental Affairs.  For the guidelines [click here].  Some of the highlights include:

  1. Only outdoor pools may re-open;
  2. Hot tubs and Jacuzzi’s must remain closed;
  3. Occupancy is limited to a maximum of 40% of existing facility capacity;
  4. Locker rooms and changing facilities must remain closed;
  5. Access to showers must be provided, preferably outdoor (but again no changing areas—so sounds like showering must occur in bathing suits);
  6. Water chemistry should be tested six (6) times per day and shocking frequency should be increased;
  7. Social distancing is required;
  8. Face coverings should be worn by patrons and staff except while in the water;
  9. No organized activities or games in the pool;
  10. Clean and disinfect frequently touched surfaces;
  11. Clean and disinfect pool furniture after every use;
  12. Post signage;
  13. Log in all staff and visitors to the pool; and
  14. If the Pool has food service, then restaurant guidelines will need to be follows for said service.

The restrictions and recommendations for pool re-openings are substantial if your condominium board decides it is worth the risk.  The risks are substantial and the season is short.  Maybe it is time to just go jump in a lake!

If you have any questions about condominium pool re-openings, restrictions or waivers please contact your MEEB attorney.

 

Written by Ed Allcock

eallcock@meeb.com