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On May 12, 2020., Georgia Governor Brian Kemp issued the attached Executive Order entitled “Reviving a Healthy Georgia” (the “Order”) which includes requirements regarding the operation of community associations and their facilities.  The Order is effective from May 14, 2020 through May 31, 2020.  As associations look at potentially reopening amenities and common areas, including pools, it is essential that associations comply with this Order.  The Order provides that any person who violates the Order shall be guilty of a misdemeanor.

Gatherings

The Order provides that non-profit corporations (which includes community associations) shall not allow “Gatherings of persons.”  The term “Gatherings” is defined in the Order as “more than ten (10) persons physically present at a Single Location if, to be present, persons are required to stand or be seated within six (6) feet of any other person,” but “groups of more than ten (10) people are permitted if their grouping is transitory or incidental, or if their grouping is the result of being spread across more than one Single Location.”  This would likely prohibit all association meetings and social gatherings occurring on common areas.  Our opinion is that the prohibition on Gatherings does not prohibit use of amenities (such as pools, tennis courts, and fitness centers) provided Social Distancing is enforced by the association and the requirements discussed elsewhere in the Order and below are strictly adhered to.

Pools

Governor Kemp issued a prior Executive Order on April 23, 2020 providing that public swimming pools were prohibited from opening until that Executive Order expired on May 13, 2020 at 11:59 p.m.  Based upon guidance from the Georgia Department of Public Health dated April 28, 2020, “[p]ools operating under County Ordinances, including subdivision, apartment and country club pools” are considered public swimming pools under the April 23^rd Executive Order.  Accordingly, our firm’s opinion was that community association pools were prohibited from opening prior to May 14, 2020.  Now, current Order removes the prior prohibition on operating public pools, but does not provide specific guidance on operating community pools moving forward.  However, Section V of the Order (beginning on page 10) contains several requirements which we believe apply to community associations as non-profit corporations.  In addition to the Order, the Georgia Department of Public Health has now issued the attached Guidance.  The first several pages of the Guidance include recommendations.  Recommendations should be followed when applicable, but are not requirements.  By contrast, requirements for pools begin on page five of the attached Guidance and follow the same requirements as the Order.  Based on both the Order and Guidance, in regard to community association pools, an association “shall implement measures which mitigate the exposure and spread of COVID-19” which are listed beginning on page 11 of the Order, including, but not limited to:

• Screening and evaluating Workers who exhibit signs of illness such as fever over 100.4 degrees Fahrenheit, cough, shortness of breath or difficulty breathing, fever, chills, muscle pain, sore throat, or new loss of taste or smell.
• Posting a sign on the front of the facility stating that individuals who have a fever or other symptoms of COVID-19 shall not enter.
• Requiring Workers who exhibit signs of illness to not report to work or seek medical attention.
• Enhancing sanitation as appropriate.
• Disinfecting common surfaces regularly.
• Requiring hand washing or sanitation at appropriate places within the location.
• Prohibiting Gatherings during hours of operation.
• Prohibiting handshaking and unnecessary person-to-person contact.
• Placing notices that encourage hand hygiene at the entrance to the facility and in other areas where they are likely to be seen.
• Enforcing Social Distancing of non-cohabitating persons while present.
• Increasing physical space between Workers and patrons.
• Frequently disinfecting Personal Identification Number (“PIN”) pads, [and] PIN entry devices.
• If the entity engages volunteers or has members of the public participate in activities, prohibiting volunteering or participation in activities for persons diagnosed with COVID-19, having exhibited symptoms of COVID-19, or having had contact with a person that has or is suspected to have COVID-19 within the past fourteen (14) days.

The definition of “Worker” includes employees, independent contractors, agents, volunteers, or other representatives of a non-profit corporation.  This would include life guards, pool company, pool monitors, property managers, directors, officers, committee members, and other volunteers.

Note that in regard to “disinfecting common surfaces regularly,” the Order does not define “regularly.”  But the Guidance provides that “[c]lean and disinfect frequently touched surfaces based on daily usage but at least once during hours of operation and before opening.”  A volunteer or lifeguard should thus disinfect surfaces before the pool opens each day and at least once during the day.  The more cleaning, the better, obviously.  But if this minimum is followed, that appears to comply.

In addition, please note that the owner or operator of a premises may be liable under premises liability law for injuries occurring on the premises if the owner or operator knew or should have known of a danger and did not repair or warn of the danger.  To that end, we strongly recommend that a sign be created and placed at the entrance of the pool that includes the following language:

INDIVIDUALS WHO HAVE A FEVER OR OTHER SYMPTOMS OF COVID-19 SHALL NOT ENTER THE POOL AREA.  GOOD HAND HYGIENE, INCLUDING HAND WASHING OR HAND SANITATION, IS REQUIRED.  HANDSHAKING AND UNNECESSARY PERSON-TO-PERSON CONTACT IS PROHIBITED.  SOCIAL DISTANCING OF NON-COHABITATING PERSONS IS REQUIRED.  ALL PERSONS ENTERING THESE FACILITIES ACKNOWLEDGE AND AGREE THAT BY ENTERING AND UTILIZING THESE FACILITIES, THEY MAY COME INTO CONTACT WITH CORONAVIRUS, SARS-COV-2 AND COVID-19, AND PERSONS WHO HAVE CONTRACTED SAME.  ALL PERSONS ENTERING THESE FACILITIES FURTHER ACKNOWLEDGE AND AGREE THAT BY ENTERING, UTILIZING AND OCCUPYING THESE FACILITIES, THEY MAY CONTRACT CORONAVIRUS, SARS-COV-2 AND COVID-19, WHICH IS KNOWN TO CAUSE RESPIRATORY DISTRESS, PNEUMONIA, SHORTNESS OF BREATH, AND DEATH.   BY ENTERING, UTILIZING AND OCCUPYING THESE FACILITIES, ALL PERSONS DO SO AT THEIR OWN SOLE VOLITION AND RISK HAVING FULL KNOWLEDGE OF THE RISKS INHERENT IN ENTERING AND UTILIZING THESE FACILITIES DURING THE COVID-19 PANDEMIC. 

The language in the sign thus incorporates the requirements from the Order and Guidance, as well as warning people of the dangers.  We recommend that a sign with the same language be placed inside the pool area and outside of the restrooms.

Fitness Centers  

Section V of the Order also places requirements on gyms and fitness centers beginning on page 14.  It is unclear whether these requirements apply to fitness centers operated by community associations, but, in an abundance of caution, we advise that our clients operate as if these requirements do apply to fitness centers within their communities.  The Order states that fitness centers, in addition to the above requirements, “shall implement measures which mitigate the exposure and spread of COVID-19, as practicable.”  If fitness centers are opened while this Order is in effect, associations should review and implement these measures.

We understand that the Order may result in confusion and uncertainty for your board of directors.  Please feel free to contact our firm for additional guidance.