Significant Restrictions Imposed on Public and Community Pools for Phase 2 Reopening in NC

Effective May 22, 2020 at 5pm, North Carolina will enter what the Governor calls "Phase 2" of the Governor's prolonged phases of reopening the state.  To enter Phase 2, the Governor issued Executive Order 141 to implement Phase 2 restrictions.

Pools are allowed to be open "in commercial settings or residential complexes," but pool operators must adhere to significant restrictions. 

Among other things, capacity is limited at pools, and cleaning requirements must be followed.  These rules do not apply to pools at individual residences.

The NC Department of Health and Human Services issued Interim Guidance for Public Pools and Spas in an attempt to add some detail to the Governor's restrictions. Under the Governor's Executive Order and the NCDHHS Interim Guidance, it appears that pool operators (including homeowners associations, condominium associations, and country clubs) are required to:

• Limit the user capacity in the pool to no more than 50% of maximum occupancy as determined by fire code (when fire code number is not known, maximum occupancy can be calculated as 33 people per 1,000 square feet in deck areas, wading pools and splash pads), and a maximum occupancy in the water of 10 people per 1,000 square feet, and ensure sufficient social distancing with at least 6-foot separation between family units.
• Post the reduced "Emergency Maximum Capacity" of both the pool enclosure and the water in a noticeable place.
• Post signage reminding people about social distancing (staying at least 6 feet away from others).
• Perform ongoing and routine environmental cleaning and disinfection of high-touch areas (e.g., doors, doorknobs, rails) with an EPA approved disinfectant for SARS-CoV-2 (the virus that causes COVID-19), and increase disinfection during peak times or high customer density times.
• Conduct daily symptom screening of employees at entrance to workplace with immediately sending symptomatic workers home to isolate. Employees who have symptoms when they arrive at work or become sick during the day should immediately be separated from others and sent home.
• Post signage at the main entrance requesting that people who have been symptomatic with fever and/or cough not enter.

In many respects, the NCDHHS Interim Guidance document tracks the Governor's Executive Order 141, but it also provides some distinctions.  While the Governor's expectations for "frequent and routine environmental cleaning and disinfection of high-touch areas" are undefined in the Executive Order, the NCDHHS Interim Guidance modifies the language.  The NCDHHS Interim Guidance provides that "frequent" cleaning means "ongoing" cleaning, and it also directs pool operators to "increase disinfection during peak times or high customer density times."

The NCDHHS Interim Guidance also includes recommended steps to take with pool operations. These are in addition to the required steps above. 

Yesterday we published an article that addresses issues Community Association and HOA Boards and management companies should consider when they make their reopening plans. "Don't Dive Right In! Strategies for Opening Community Pools in the Wake of COVID-19"  is recommended reading.

It may be good news to hear that community or club pools may open, but the reality is that many may not be able to open with these requirements. 

Operators of unattended pools face hurdles in limiting capacity and increasing cleaning to meet Phase 2 requirements.  Some community pools may open, some may not, depending on which communities can meet these new restrictions.

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This article is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this article without obtaining the advice of an attorney.

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