Requirements for South Carolina HOA/Condo Pools for Re-Opening After May 18, 2020

Steve Black

Since the outbreak of the COVID-19 pandemic the community association attorneys at Black Slaughter Black, P.A. have been closely monitoring the Executive Orders from the South Carolina Governor, county and city Orders, and the recommendations of the South Carolina Department of Health and Environmental Controls, along with those of the Center for Disease Control.

On May 11, 2020 Governor Henry McMaster announced that fitness centers and pools (“Amenities”) may re-open on Monday, May 18, 2020 with certain requirements which are mandated (“Requirements”) and with guidelines that are strongly recommended but not mandated (“Guidelines”).

As of the time of this writing there has been no official Executive Order to provide clear instructions but below are recommendations on how a board of directors may open and keep open the Amenities.      

Step 1 – The Governor’s announcement and authorization to reopen Amenities is on the state level.  The board of directors still must confirm whether there is a county order, city order, or other order that may require the Amenities to stay closed.  It is recommended that the board of directors have the association’s attorney seek this confirmation.  If there is no other order keeping the Amenities closed, go to Step 2.

Step 2 – The board of directors needs to decide whether it is going to open the Amenities or not.  The fact that the Association can legally open the Amenities does not necessarily mean that they should be open.  If the board of directors decides to open the Amenities, go to Step 3.

Step 3 – The association is responsible for making sure that the users of the Amenities comply with the Requirements set forth by the South Carolina Department of Health and Environmental Control.  Those Requirements are:

  • Stay home if you are sick.
    • Practice social distancing of at least six feet distance to the greatest extent possible.
    • Wash hands frequently (20 seconds with soap and water or use of a sanitizer that contains at least 60% alcohol).
    • Clean and disinfect frequently touched objects.
    • Avoid touching of eyes, nose and mouth with unwashed hands.
    • Strongly consider wearing a cloth face covering when in public and not in the pool (do not use on children under two years old, people with difficulty breathing, or people who cannot remove the mask themselves).
    • Cover mouth and nose when you cough or sneeze and throw used tissues away immediately after use.
    • Avoid using other peoples’ phones, towels, cups or other items or disinfect them before and after use.
    • Minimize the use of soft surfaces like cloth covered chairs that are more difficult to clean or disinfect.

For associations that have a full-time lifeguard/attendant for the Amenities the association should, at a minimum:

  • Post signage of the above Requirements in several conspicuous places at the Amenities.
  • Discuss with the association’s pool company the life guard/attendant taking an additional ten minutes every hour (similar to their breaks when the pool is cleared of swimmers) to enforce social distancing, to clean and disinfect frequently touched objects such as gates, handrails, bathroom fixtures, and to respectfully request compliance of the other Requirements on the sign.  In the event any user refuses to follow the Requirements the user should be required to leave the Amenity or the Amenity must close. 
  • Keep track of complaints received regarding users’ failure to comply with the requirements and with each complaint the board of directors should determine what additional measures may be available for enforcement or whether the Amenity should be closed until the Requirements are changed or lifted.

For associations that do not have a full-time lifeguard/attendant for the Amenities the association should, at a minimum:

  • Post the same signage of the Requirements that is set forth above in several conspicuous places, but add language that failure to comply with the Requirements will result in the closure of the Amenity.
  • Discuss with the association’s pool company whether they are willing to assist in enforcing the Requirements on their routine visits to the pool.
  • Keep track of complaints received regarding users’ failure to comply with the requirements and with each complaint the board of directors should determine what additional measures may be available for enforcement or whether the Amenity should be closed until the Requirements are changed or lifted.

Step 4 – Whether the association has a full-time lifeguard/attendant or not, it has been recommended (but has not been mandated) that the following additional protections for open Amenities be followed:

  • Facilities should only allow 20% of normal occupancy or 5 people (staff and visitors) per 1000 square feet of pool and deck area, whichever is less.
  • Signs and/or examples of six foot areas related to social distancing should be posted.
  • Remove from service or regularly disinfect sharable equipment (for example, kick boards, floats, etc.)
  • Consider lane reservations to allow family groups to use a lane or specific area of a pool.
  • Consider a phased approach to opening that brings back lane swimming and limited number participant classes before opening for general swimming.
  • Lifeguards should continue to follow universal precautions when rendering first aid of any type to patrons.
  • Follow CDC guidelines regarding cleaning and disinfecting.

The board of directors, using good business judgment and operating in good faith, should consider implementing those additional recommendations above that are reasonably possible. 

NOTE – The association is responsible for enforcement of the Requirements.  It is not immediately clear whether violating the Requirements carry the same penalty as a violation of an Executive Order of the Governor or whether the penalty would be from the South Carolina Department of Health and Environmental Controls.  Either way, penalties are possible that may include fines and criminal charges.  It is recommended that the board of directors contact the association’s attorney to confirm compliance with the existing Executive Orders, county and city orders, and the requirements of DHEC.

NOTE: One factor for a board to consider in making the decision to open and operate the pool is that the association’s insurance may not cover claims of losses related to transmission of the COVID-19 virus. It is also possible that any directors and officers (“D&O”) coverage may not cover such claims as well. Questions about coverage should be directed to the association’s insurance agent and legal counsel.

NOTE: FYI, our attorneys have prepared pool use/waiver forms for many associations to specifically address waivers of liability from COVID-19 related claims. These waivers are based on a community’s specific circumstances and governing documents. If we can help you with this, please reach out to one of the attorneys in our Greensboro, Triangle, Charlotte or Coastal offices.

The information contained in this blog is provided for general purposes only and does not constitute legal advice.  If you or your community have questions about reopening amenities or other portions of your community please contact one of our community association attorneys at Black Slaughter Black, P.A.