Executive Order 2020-115: Michigan relaxes restrictions on recreational facilities and pools

On June 5, 2020, Governor Whitmer signed Executive Order 2020-115 which further relaxed the restrictions on pools and recreational facilities contained in Executive Order 2020-110.  Accordingly, Michigan condominium and homeowners associations have the ability to re-open pools and recreational facilities subject to certain restrictions.  However, the fact that certain recreational facilities can be legally reopened does not necessarily mean that every community association will choose to do so based on the increased cost and potential risks.  Accordingly, before making a decision to reopen any recreational facilities, you should read our guide on the appropriate steps a community association should take to limit risk. The major changes implemented by Governor Whitmer through Executive Order 2020-115 are as follows:

Indoor Recreational Facilities

Opening Date: June 10, 2020 (for Regions 6 and 8), Other Regions TBD and subject to Executive Order 2020-110 

Restrictions: Executive Order 2020-115 permits the reopening of items such as gyms or fitness centers, subject to certain restrictions, in different phases depending on the area of the state in which the gym or fitness center is located.  Executive Order 2020-115 divides Michigan into the following regions:

Region 1 includes the following counties: Monroe, Washtenaw, Livingston, Genesee, Lapeer, Saint Clair, Oakland, Macomb, and Wayne.

Region 2 includes the following counties: Mason, Lake, Osceola, Clare, Oceana, Newaygo, Mecosta, Isabella, Muskegon, Montcalm, Ottawa, Kent, and Ionia.

Region 3 includes the following counties: Allegan, Barry, Van Buren, Kalamazoo, Calhoun, Berrien, Cass, Saint Joseph, and Branch.

Region 4 includes the following counties: Oscoda, Alcona, Ogemaw, Iosco, Gladwin, Arenac, Midland, Bay, Saginaw, Tuscola, Sanilac, and Huron.

Region 5 includes the following counties: Gratiot, Clinton, Shiawassee, Eaton, and Ingham.

Region 6 includes the following counties: Manistee, Wexford, Missaukee, Roscommon, Benzie, Grand Traverse, Kalkaska, Crawford, Leelanau, Antrim, Otsego, Montmorency, Alpena, Charlevoix, Cheboygan, Presque Isle, and Emmet.

Region 7 includes the following counties: Hillsdale, Lenawee, and Jackson.

Region 8 includes the following counties: Gogebic, Ontonagon, Houghton, Keweenaw, Iron, Baraga, Dickinson, Marquette, Menominee, Delta, Alger, Schoolcraft, Luce, Mackinac, and Chippewa.

Regions 6 and 8 may reopen gyms and recreational facilities on June 10th.  The remainder of the regions in Michigan remain subject to Executive Order 2020-110 for the time being.  However, when reopening, the Governor has stated that gyms “will be permitted to reopen, subject to strict workplace safeguards” that are contained in Executive Order 2020-114.  Paragraph 13 of Executive Order 2020-114 provides the following requirements that must be complied with until the end of the state of emergency:

Gymnasiums, fitness centers, recreation centers, sports facilities, exercise facilities, exercise studios, and like facilities must: Post sign(s) outside of entrance(s) informing individuals not to enter if they are or have recently been sick.

  • Maintain accurate records, including date and time of event, name of attendee(s), and contact information, to aid with contact tracing.
  • To the extent feasible, configure workout stations or implement protocols to enable ten feet of distance between individuals during exercise sessions (or six feet of distance with barriers).
  • Reduce class sizes, as necessary, to enable at least six feet of separation between individuals.
  • Provide equipment cleaning products throughout the gym or exercise facility for use on equipment.
  • Make hand sanitizer, disinfecting wipes, soap and water, or similar disinfectant readily available.
  • Regularly disinfect exercise equipment, including immediately after use. If patrons are expected to disinfect, post signs encouraging patrons to disinfect equipment.
  • Ensure that ventilation systems operate properly.
  • Increase introduction and circulation of outdoor air as much as possible by opening windows and doors, using fans, or other methods.
  • Regularly clean and disinfect public areas, locker rooms, and restrooms.
    Close steam rooms and saunas.

However, if a community association does not believe that it can pay the increased cost associated with complying with and monitoring the above safety requirements, it should consider keeping the indoor recreational facilities closed.  It is also important to review Executive Order 2020-114 if a community association has employees that operate the recreational facilities, as the order also imposes additional rules regarding employee safety for these facilities.

Outdoor Recreational Facilities

Opening Date: June 1, 2020

Restrictions: Executive Order 2020-115 did not make any changes to rules regarding outdoor recreational facilities, which were previously allowed to reopen under Executive Order 2020-110.   Executive Order 2020-115 provides as follows:

Unless otherwise prohibited by local regulation, outdoor parks and recreational facilities may be open, provided that they make any reasonable modifications necessary to enable employees and patrons not part of the same household to maintain six feet of distance from one another, and provided that areas in which social distancing cannot be maintained be closed, subject to guidance issued by the Department of Health and Human Services.

Accordingly, while associations can reopen items like outdoor basketball courts (with limited participants), pickleball courts, parks, picnic areas or tennis courts, they must ensure that they have adequate safety rules in place that will be enforced in order to maintain social distancing.  Examples of rules that a condo or HOA should consider adopting are as follows:

  • Equipment Rules. Requiring residents to bring their own equipment to recreational facilities, such as basketball balls, beach chairs, grilling utensils, tennis rackets or towels.
  • Health Screening Rules. Community associations should consider whether to implement health screenings, similar to those required by employers, to determine if employees have a fever or any other symptoms of COVID-19. Accordingly, community associations may want to consider installing infrared wall mounted thermometers to monitor temperatures and require users of recreational facilities complete health screening questionnaires.
  • Capacity Rules. While outdoor gatherings of up to 250 people are now permitted, Executive Order 2020-115 still requires social distancing. Accordingly, the capacity of any outdoor recreational facilities should be limited to ensure social distancing at all times. Community associations with highly used recreational facilities may want to create staggered schedules so that residents may only use recreational facilities during certain time periods.
  • Rules Limiting Contact. The CDC recommends that social distancing of at least 6 feet be maintained while engaged in recreational activities. Accordingly, community associations should enact rules to limit the use of areas such as basketball courts, gazebos and grills to avoid in-person contact. 
  • Rules Limiting or Prohibiting Guests. Limit the number of guests that may use a facility or limit the use of the facility to residents only. Similarly, limiting the time period during which a recreational facility is in use may also limit the number of users and permit additional time for cleaning.

Pools

Opening Date: June 8, 2020 – Outdoor Pools / June 10, 2020 – Indoor Pools (for Regions 6 and 8 / TBD for other regions)

Restrictions: Executive Order 2020-110 previously allowed outdoor swimming pools to reopen on June 8, 2020 at 50% capacity, but required indoor swimming pools to remain closed.  However, Paragraph 9 of Executive Order 2020-115 allows indoor pools in Regions 6 and 8 to reopen at 25% of bather capacity. Specifically, 

Unless otherwise prohibited by local regulation, public swimming pools, as defined by MCL 333.12521(d), may be open, subject to guidance issued by the Department of Health and Human Services, provided that…If they are indoors, they limit capacity to 25% of the bather capacity limits described in Rule 325.2193 of the Michigan Administrative Code.

Additionally, it should be noted that the social gathering limitations of 50 people for an indoor area, and 250 people for an outdoor area, do not apply to incidental contact at a pool.  However, pools must still limit bather capacity as indicated above.

While it is anticipated that the Department of Health and Human Services will issue additional pool rules in the future, beyond the capacity the rule, community associations should comply with other CDC guidance for operating pools as well. The CDC has issued the following guidance on best practices for operating public swimming pools and considerations for public pools, hot tubs and water playgrounds during COVID-19

Similarly, community associations may want to limit the use of pools to lap swim to prevent residents from accidentally coming in contact with each other, rearrange furniture, close locker rooms or create touchless entry points to minimize contact.

Finally, it is important to note that a pool must still have a permit to legally open. In response to Executive Order 2020-110, many counties have also allowed pools to reopen.  Accordingly, community associations should ensure that they have the appropriate permits to reopen, before reopening, and implement the above safety procedures before rushing to reopen.  However, if a community association does not believe that it can pay the increased cost associated with cleaning or monitoring the above safety rules, it should consider keeping the pool closed.

Kevin Hirzel is the Managing Member of Hirzel Law, PLC and concentrates his practice on commercial litigation, community association law, condominium law, Fair Housing Act compliance, homeowners association and real estate law. Mr. Hirzel is a fellow in the College of Community Association Lawyers, a prestigious designation given to less than 175 attorneys in the country. He is also a member of the Community Associations Institute’s (“CAI”) National Board of Trustees. Mr. Hirzel has been a Michigan Super Lawyer’s Rising Star in Real Estate Law from 2013-2020, an award given to only 2.5% of the attorneys in Michigan each year. Mr. Hirzel has been named a Leading Lawyer in Condominium & HOA law by Leading Lawyers Magazine from 2018-2020, an award given to less than 5% of the attorneys in Michigan each year. He represents community associations, condominium associations, cooperatives, homeowners associations, property owners and property managers throughout Michigan. He may be reached at (248) 478-1800 or kevin@hirzellaw.com.