By: Melissa D. Francis, Esq.
On June 1, 2020, Michigan Governor, Gretchen Whitmer, issued Executive Order 2020-110 (more information can be found here). Paragraph 8 of this Executive order states “Unless otherwise prohibited by local regulation, public swimming pools, as defined by MCL 333.12521(d), may open as of June 8, 2020 provided they are outdoors and limit capacity to 50% of the bather capacity limits described in Rule 325.2193 of the Michigan Administrative Code, and subject to guidance issued by the Department of Health and Human Services…”. The issuance of this Executive Order caused the Health Department in Macomb, Oakland, and Wayne Counties and the City of Detroit to rescind their previous orders closing all outdoor pools indefinitely.
The issuance of Executive Order 2020-110 and the rescission by the Health Departments of their orders closing all outdoor pools indefinitely makes way for Condominium and Homeowners’ Associations in the State of Michigan to finally get the swim season started and open their pools. However, the question must now be asked, “Should an Association open the outdoor pool?”
In determining whether or not to open an Association’s outdoor pool in the wake of COVID-19, Association Boards must address three basic questions:
1. WHAT IS THE HEALTH DEPARTMENT IN THE COUNTY WHERE THE ASSOCIATION IS LOCATED REQUIRING FOR POOLS TO OPEN?
In preparing this article, the writer was able to make contact with the Health Departments in Macomb County, Oakland County, Wayne County and the City of Detroit to discuss what would be required of Homeowners’ and Condominium Associations to reopen their pools following the Executive Order issued by Governor Whitmer on June 1, 2020.
While the Washtenaw County Health Department is closed until June 15, 2020 and the writer was unable to speak with someone from the Department, Washtenaw County updated the pool opening package on their website June 8, 2020
In Macomb County, Oakland County, Wayne County, and the City of Detroit, the procedures for pool openings will remain the same as they have in past years. A pre-opening inspection will need to be conducted prior to the pool opening to the public if the pool was closed by the County for violations in the 2019 season. Homeowners’ and Condominium Associations must submit the same paperwork to the Health Department required in past seasons for opening the pool. In Macomb County, the paperwork can be obtained by contacting the Health Department at (586) 469-5236. Paperwork for the City of Detroit can be obtained by contacting the Health Department’s Environmental Health Department at (313) 876-4000. The paperwork for Oakland County, Wayne County.
In addition to submitting the required opening paperwork in the above referenced counties, Associations must make certain they have a properly stocked, readily accessible first aid kit which is checked and replenished daily and adequate rescue equipment. A good reference for stocking your aquatic first aid kit can be found on Aquatic Council, LLC’s website.
While the requirements for opening the pool have not changed in Macomb, Oakland, and Wayne Counties, and the City of Detroit, each of these Health Departments stressed that Associations must reduce the capacity of their pool area to 50% of regular capacity (up to 100 people) and the United States Centers For Disease Control (CDC) guidelines must be followed regarding cleaning, personal protective equipment, and social distancing. These Health Departments will be inspecting pools throughout the summer and will be specifically reviewing each facility to verify these requirements are being met. Each pool must have a designated person available within 15 minutes if called by anyone to respond to an emergency at the facility, test water, or meet inspectors.
Unlike the other counties and the City of Detroit, Washtenaw County requires that the inspection of the aquatic facility be done prior to the facility’s opening for the season. Each pool must have a designated person available within 15 minutes if called to respond to an emergency at the facility, test water, or meet inspectors. Washtenaw County is also requiring that a pool attendant regularly inspect and clean the pool. The pool attendant does not have to be onsite the entire day, but make several trips to the pool during operating hours to monitor and properly clean in and around the pool. Further, Washtenaw County requires that each Association complete and keep a Covid-19 Preparedness and Response Plan onsite. A template for the Plan and the other documentation which must be submitted to Washtenaw County for pool opening can be found here.
If your Homeowners’ Association or Condominium Association is not within Macomb County, Oakland County, Wayne County, Washtenaw County, or the City of Detroit, it is suggested that you contact your local County and/or City Health Department and review their website for guidelines on opening your outdoor aquatic facility.
As of June 12, 2020, no new guidelines or information on requirements for opening pools had been posted by the State of Michigan Department of Health and Human Services or the Michigan Department of Environment, Great Lakes, and Energy. The writer will continue to monitor the websites of the State of Michigan, Macomb County, Oakland County, Wayne County, Washtenaw County, and the City of Detroit and will update this post as necessary with any new information.
Association Boards must analyze all of the requirements for their County and determine if they can meet these requirements before opening their outdoor aquatic facility. Boards should consider the costs and practicality of implementing these new requirements.
2. CAN THE ASSOCIATION MEET THE MINIMAL GUIDELINES SET BY THE CENTERS FOR DISEASE CONTROL (CDC) FOR PUBLIC POOLS, HOT TUBS, AND WATER PLAYGROUNDS DURING COVID-19?
Each of the Health Departments interviewed for this article stressed that each aquatic facility must be able to adhere to the guidelines devised by the Centers for Disease Control (CDC). The full guidelines can be found here.
The guidelines that may cause the biggest hurdles for Associations are the guidelines for cleaning the facility. The CDC guidelines provide that each facility, including any restrooms or locker rooms, must be fully stocked with adequate soap, hand sanitizer with at least 60% alcohol, paper towel, and facial tissues. The guidelines provide that an adequate amount of “no touch” or open trash cans be placed in the facility and frequently emptied. Additionally, the guidelines state that all frequently touched surfaces must be disinfected and cleaned daily and shared surfaces EACH time they are used, including but not limited to, handrails, slides, tables, chairs, pool toys, and bathroom surfaces. Signage should be posted regarding proper hygiene and disinfection/cleaning of surfaces. The guidelines specifically provide that lifeguards who are actively guarding the swimming pool SHOULD NOT be monitoring the cleaning of the facility and an additional person should be on staff to ensure these areas are properly cleaned.
Additional guidelines of importance to Associations are guidelines dealing with social distancing. The CDC guidelines lists no gatherings, or meetings both in and out of the water if social distancing between people who don’t live together cannot be maintained. An exception is made for patrons and/or staff providing or receiving first aid or CPR or rescuing a distressed swimmer. Associations may need to change the layouts of their pool areas to provide for proper social distancing. It is recommended that visual cues be utilized in and out of the water to encourage social distancing using lane lines, tape, cones, etc. Face masks or other adequate coverings should be worn at all times when not in the water. Signage regarding social distancing and face mask usage should be posted.
Prior to opening their outdoor aquatic facilities, Associations will need to adopt new rules, regulations, and procedures for these facilities which take into account all of the CDC guidelines. In order to minimize the number of surfaces needing to be cleaned, Associations should consider storing all pool equipment and furniture for the summer in an area that cannot be accessed by patrons and advising patrons to bring their own furniture and pool equipment. Associations may also want to consider keeping restroom and locker room areas closed, again to minimize areas that need to be cleaned.
3. ARE THERE COST OR INSURANCE BARRIERS TO REOPENING AN ASSOCIATION’S OUTDOOR POOL?
The third consideration for reopening Association pools is cost. Associations must determine how they will implement the requirements set forth by the health department and the CDC guidelines. Will implementation of these requirements increase the operating budget for the pool due to costs of additional cleaning supplies, barriers, and staff? If yes, how will these costs be covered by the Association? Associations should also thoroughly investigate whether their insurance policies will cover Covid-19 related claims. A thorough review of the Association’s insurance policies and contacting your insurance agent should be considered. Attorneys from Zelmanski, Danner & Fioritto, PLLC have spoken with several insurance professionals specializing in insuring Community Associations and concluded that there will likely be no insurance coverage for claims brought against an Association or its Board related to a person contracting Covid-19 at a community pool. More information regarding insurance considerations can be found in the webinar, “Back to the Office: Restarting Operations” jointly presented by Zelmanski, Danner & Fioritto, PLLC and Fraser Trebilcock Davis and Dunlap, P.C. which can be found here.
In conclusion, Homeowners’ and Condominium Association Boards must do a thorough analysis of the above factors before deciding to open the Association’s outdoor pool for the summer of 2020. This type of analysis will save the Association from potential problems arising from a quick decision to reopen.
Melissa D. Francis joined the Firm in 2013 as an associate attorney. She is a graduate of Plymouth-Canton High School and earned her Bachelor of Arts Degree in International Relations from Michigan State University’s James Madison College in 1998. She earned her Juris Doctorate from Wayne State University Law School in 2001. Ms. Francis is admitted to practice law in the State of Michigan, Federal District and Bankruptcy Courts for the Eastern and Western District of Michigan, and the United States Supreme Court. Ms. Francis has extensive experience representing both Creditors and Debtors in Chapter 7, 11, and 13 Bankruptcy proceedings. Since association collections matters routinely involve bankruptcy issues, her vast experience in that field provides the Firm with a unique resource that provides tremendous value to the Firm’s Clients. Ms. Francis is a member of the American Bankruptcy Institute. She was a speaker at the 2019 Community Association Institute Law Conference in New Orleans discussing Consumer Bankruptcy and its impact on Community Associations. She is also a speaker at the 2019 American Bankruptcy Institute Detroit Conference on Veteran’s Day.
Ms. Francis is a Past Dean of the Metro Detroit Alumni Senate of Delta Theta Phi Law Fraternity International. She is active in the Plymouth-Canton Community as a member of the St. Thomas A’Becket Church choir, BeckRidge Productions, Spotlight Players Theater Company, and the Plymouth-Canton Marching Band Alumni Community.