In response to our article from May 3rd, 2020, we have received inquiries from readers regarding the ability of an association located in Palm Beach County to use volunteers to provide the pool monitoring as required by Palm Beach County Emergency Order Number 5.
In relevant part, the Palm Beach County Order provides that as to the re-opening of community swimming pools the association must have “[o]ne (1) or more facility staff or management be present at each facility location to monitor and ensure compliance with the [Order].” There is no definitive instruction in the Order as to how a community association is to comply this particular requirement. However, based upon the plain meaning of the words, the association should have personnel from management or association staff physically present at the association’s pool facilities during its operating hours to monitor the use of the pool facilities to ensure compliance with the Order.
In addition, based upon an April 28, 2020, posting from the Palm Beach County website, it is suggested that an association could also appoint a committee of community volunteers to perform the pool monitoring. The issue created by the Palm Beach County Website posting is that the Order required “facility staff or management” to provide the pool monitoring. The term “volunteers” was not not used.
With that in mind, if an association located in Palm Beach County decides to use volunteers to provide the pool monitoring function, then the following should be taken into consideration:
- If a resident who contracts Covid-19 later sues the association alleging a breach of the Order somehow led to their contracting of the virus, then will the association be in a position to show compliance with the Order when, in fact, volunteers were used? While such a lawsuit is remote, given today’s litigious environment it is not out the question.
- Does the association have legal defense coverage which would at least provide for assignment of defense counsel so that the association will not have to go out of pocket in the event its other insurance policies do not provide coverage?
- Does the association have insurance coverage in place to cover acts of volunteers?
- Does the association have volunteer workers comp type coverage in place?
Although not required by the Order, we suggest that the association consider conspicuously posting or having available as a handout a summary of the CDC Social Distancing Guidelines and the Palm Beach County Emergency Order Number 5 as related to use of community pools. The following links are provided for your reference:
- Palm Beach County Emergency Order Number 5
- The Palm Beach County Website April 28 posting related to volunteers
Remember to also discuss the re-opening plan with your association’s legal counsel.