June 5, 2020 - 3:40 pm
I think it is very important for homeowners to know the requirements for homeowners association boards to open their swimming pools and facilities. Las Vegas attorney John Leach provides the details and restrictions that have been placed upon association boards that are causing delays in allowing homeowners to use their facilities:
The issues regarding the reopening of association pools and other facilities have been difficult to address because the standards and guidelines implemented by Gov. Steve Sisolak, the Local Empowerment Advisory Panel and the Southern Nevada Health District keep changing. LEAP has reissued guidelines for public aquatic facilities, which includes HOA pools.
Each association board, along with its community manager and legal counsel need to consider adopting temporary rules during this period. Here are some of the issues:
■ The potential association, officer and director liability. The law says the association has a duty to indemnify, defend and hold harmless its officers and directors until it is proven they acted with willful or wanton misfeasance or gross negligence. See Nevada Revised Statute 116.31037. The association is required to have directors and officers insurance that extends to the “officers, employees, agents, directors and volunteers of the association and to the community manager of the association and any employees thereof while acting as agents as insured persons under the policy terms.” See NRS 116.3113 (1) (d).
The key for the board is that it must fulfill its fiduciary duty. This means acting on an informed basis, in good faith and in the honest belief that its actions are in the best interest of the association. See NRS 116.3103 (1). This also includes consulting with appropriate professionals before making any major decisions affecting the association or the common elements. See Nevada Administrative Code 116.405 (8) (e). Even if the board does everything correctly, it may still be sued but the individual officers and directors should not be personally liable if they adhere to the above referenced standards.
■ Your insurance policy will not likely cover the spread of infectious diseases such as COVID-1. Some insurers may defend their association clients under its director’s and officer’s coverage, but none of them will indemnify an association for any damages incurred by another person resulting from the spread of an infectious disease.
■ It is not wise to use individual owners to assist with daily cleaning and sanitizing. NAC 116.405 (8) (d) suggests that service providers should have proper licensing. It is recommended that associations use independent contractors that are licensed and insured. This is a more expensive alternative but it is also safer and lessens potential liability.
■ The adoption of new rules requires board action. Did the board adopt the rules in a board meeting or was action taken in lien of a meeting? See NRS 82.271. If the latter, was a corporate record created?
■ Check with your legal counsel to determine if your association should have a waiver for the pool and other facilities. Some insurers and legal counsel are recommending this.
■ As of press time, the hot tub or spa within the pool area should still be closed. The Governor’s Directive 021 specifically states: “Hot tubs shall remain closed to the public.” Basketball courts, volleyball courts, saunas and playground equipment should still be temporarily closed.
With respect to the rules and regulations, the following issues should be considered by the board:
■ If there are multiple pools, perhaps open only one or some of the pools. That way staff can be mobilized to address the issues of maintenance and cleaning in the reopened areas. Consider the hours of operation. The board has the authority to limit them. It may be that the board needs to consider hiring a third party to monitor the pool after management hours.
■ Limit the number of people in the pool or the gym at any one time. The governor and the LEAP guidelines have limited pool capacity to 50 percent of the fire code limit. There also is a rule that allows no more than 50 people at one time, and there must be space for social distancing, which may further reduce the number of users at one time.
■ Limiting the pool and gym to the owners and residents but not guests. This should extend to all of the facilities.
■ There is a big debate about the use of reservations. A previous version of the LEAP guidelines said they were required. Its revised rules contain two conflicting provisions. Under the subsection “General,” it states: “Reservations are required.” Under the subsection entitled “Guest Guidelines” it states: “Consider requiring reservation.” The Governors Directive 021 does not reference a reservation program, but it did state that “… all public aquatic venues (which include HOA pools) are encouraged to abide by all other guidelines promulgated by the LEAP.”
A spokesperson for LEAP working with the governor’s team to create the guidelines, said that one of the governor’s sticking points to allowing pools to reopen was reservations. For associations that do not have staff, the recommendation was for association to set up an email account where owners could email the manager requesting pool reservation times. For example, name, address, number of people, date and time. The manager could then create a calendar to track who is supposed to be in the pool at any given time. The reason behind the reservations is to ensure social distancing and control capacity. It was recommended that associations without on-site staff have a sign in/sign out sheet at the pool for residents.
■ Limiting the length of time anyone can use the pool or gym. Have set times for pool and gym use and the number of people (i.e. no more than 10 people for one- or two-hour blocks). If a lifeguard or pool monitor is available, have them sign people in, allow them in the pool and control when users leave the pool for the next group. A similar monitor may be implemented in the gym. If there is no monitor, residents will have to self-monitor, such that when the next group arrives, the people who have been in the pool area the longest have 15 minutes after the arrival of the new owners before they must exit.
■ Consider removing the pool furniture. The Governor’s Directive provides that “deck layouts and furniture in standing and seating areas must be arranged to maintain social distancing.” The previous version of the LEAP guidelines provided that “lounge chairs must be removed.” The revised LEAP guidelines say “lounge chairs must be arranged to maintain social distancing of at least 6 feet between persons not from the same household.” The LEAP guidelines also state: “encourage minimum 6 feet between people by changing deck layouts, placement of furniture, designation of pathways.” The board may remove the pool furniture and require the residents to bring their own, which should leave with them. This would remove the need for association to regularly clean and sanitize the furniture. If the board is going to use its pool furniture, then it must be placed to meet the social distancing requirements and no one should be permitted to relocate the furniture.
■ In a gym or fitness center, disable some of the equipment so that individuals are not working out next to each other. Space the equipment to allow a 6-foot radius. Remove excess seating.
■ Scheduling the pool and gym hours so that there is adequate time to clean the facilities (including adjacent bathroom areas). At a minimum, the association should clean the facilities once per day. This is true even if the users are asked to clean the gym equipment or bathrooms before and after usage.
■ Increase the frequency of cleaning the pool and the gym, as well as any adjacent bathroom facilities.
■ Hand washing or sanitizing upon entry to the facility. Have sanitizer available throughout the facility. Use disinfectants on equipment between users.
■ Post signs that state the association does not insure against the spread of COVID-19 or other infectious diseases. In addition, post signs at each entrance to each facility recommending face coverings, reminding users of social distancing, hand-washing, sanitizing of equipment and a list of COVID-19 symptoms and what to do if symptomatic.
■ Have the owners and residents sign waivers. It may be helpful if claims are made and insurance evaluates the case.
■ Here are few other general COVID-19 guidelines:
Do not utilize the pool area or gym if:
■ You are exhibiting any symptoms of COVID-19: mild to severe respiratory illness with fever, cough and difficulty breathing or other symptoms identified by the CDC.
■ You have been in contact with someone diagnosed with COVID-19 in the last 14 days.
■ You are a vulnerable and at-risk individual who is elderly and/or with underlying health conditions, including high blood pressure, chronic lung disease, diabetes, obesity, asthma and those whose immune system may be compromised such as by chemotherapy for cancer and other conditions requiring such therapy.
Protect against infections:
■ Wash your hands with disinfectant soap and water (for 20 seconds or longer), or use a hand sanitizer if soap and water are not readily available, before going to the association’s pool area or gym.
■ Clean and wipe down any your equipment or furniture. Do not share equipment or furniture, including but not limited to towels.
■ Bring your own water bottle or other method of hydration and avoid using any communal water source or fountain.
■ Use your own swim equipment including floating devices, if possible.
■ Consider taking extra precautions such as wearing gloves.
■ If you need to sneeze or cough, do so into a tissue or upper sleeve.
■ Avoid touching gates, fences, benches and other equipment if possible.
Social Distancing Precautions:
■ Try to stay at least 6 feet apart from other individuals in the pool and gym areas. Do not make physical contact with others (such as shaking hands).
■ Avoid sharing food, drinks or towels.
Procedures after use of the pool area or gym:
■ Leave the pool area or gym as soon as reasonably possible.
■ Wash your hands thoroughly or use a hand sanitizer immediately after leaving the pool area and gym.
■ Do not use the community bathroom if at all possible.
■ No extra-curricular activity or social activity should take place. No congregating in the pool or gym areas.
John E. Leach, Esq. is a partner in the law firm of Leach Kern Gruchow Anderson Song. He has been practicing law for over 30 years and his primary area is common-interest communities. He teaches seminars on the subject of NRS 116 and may other common-interest community issues.