Executive Order 2020-175: Governor Whitmer Enters New Executive Order on Swimming Pool and Recreational Facility Restrictions

Michigan condominium associations and homeowners associations have been struggling with decisions to open swimming pools and other recreational facilities all summer.  Many community associations have kept facilities closed for safety and liability reasons.  On September 3, 2020, Governor Whitmer signed Executive Order 2020-175 and Executive Order 2020-176, which altered the restrictions on swimming pools and recreational facilities that had been in place since June of 2020 under Executive Order 2020-115.  As a practical matter, many of the outdoor swimming pools that were opened will be closing after Labor Day weekend.  However, while the safest course of action is to keep pools and recreational facilities closed for the remainder of the year, community associations that made the choice to re-open swimming pools and recreational facilities should be aware of the new rules that are effective as of September 9, 2020.

Executive Order 2020-176 provides in pertinent part as follows:

Recognizing the need for ongoing vigilance, this plateau allows us to carefully and deliberately relax some restrictions. An incremental approach—where some activities reopen before others—is essential to avoiding uncontrolled spread, measuring the result of changes, and allowing our gradual reopening to continue. This order therefore allows for organized sports competitions to resume, if organizers take appropriate precautions. It also allows for gyms and pools to reopen across the state, subject to stringent safety protocols…

11. Pools. Effective September 9, 2020, unless otherwise prohibited by local regulation, public swimming pools may be open in all Regions, subject to the rules in the Workplace Safeguards order (Executive Order 2020-175 or any order that may follow from it). This section does not apply to waterparks, which are subject to section 3(c) of this order, except in Regions 6 and 8.

     Accordingly, before opening any swimming pools, associations should determine if there are any county or municipal regulations that also prevent swimming pools from being opened, as such regulations would still apply.

Indoor Recreational Facilities

Executive Order 2020-175 defines the requirements for continued operation of gyms, fitness centers, exercise facilities and the like during the COVID-19 pandemic. Specifically, Paragraph 13 of the Order states that each of these facilities is subject to the following requirements: 

1. 1. Use best efforts to provide opportunities for patrons to exercise outdoors.
   2. Maintain accurate records, including date and time of entry and exit, names of patrons, and contact information, to aid with contact tracing; and deny entry to any visitor who does not provide at a minimum their name and phone number.
   3. Mandate wearing of facial coverings at all times except when swimming.
   4. Limit capacity in the facility to 25% of the total occupancy limits established by the State or Local Fire Marshal.
   5. Configure workout stations or implement protocols to enable six feet of distance between individuals during exercise sessions (or six feet of distance with barriers).
   6. Reduce class sizes, as necessary, to enable at least six feet of separation between individuals, and comply with relevant restrictions on social gatherings and organized events in the Michigan Safe Start Order.
   7. Provide equipment-cleaning products throughout the facility for use on equipment.
   8. Make hand sanitizer, disinfecting wipes, soap and water, or similar disinfectant readily available.
   9. Regularly disinfect exercise equipment, including immediately after use. If patrons are expected to disinfect, post signs encouraging patrons to disinfect equipment.
   10. Ensure that ventilation systems operate properly.
   11. Increase introduction and circulation of outdoor air as much as possible by opening windows and doors, using fans, or other methods.
   12. Regularly clean and disinfect public areas, locker rooms, and restrooms.
   13. Close steam rooms, saunas, jacuzzis, and cold plunge pools.
   14. Post signs outside of entrances instructing individuals not to enter if they are or have recently been sick.

As indicated above, there are many additional regulations that must be enforced if recreational facilities are opened.  Condominium and homeowners associations should ensure that they have adequate rules in place to ensure that the above requirements are being complied with.  As a practical matter, it is very difficult to ensure compliance unless a community association hires a person to monitor the area and enforce the above regulations.

Swimming Pools

In addition to the above requirements, Executive Order 2020-175 also has new requirements that regulate the use of swimming pools. Paragraph 14 of the Order states that swimming pools are subject to the following additional requirements: 

1. 1. 1. If they are outdoors, limit capacity to 50% of the bather capacity limits described in Rule 325.2193 of the Michigan Administrative Code;
      2. If they are indoors, limit capacity to 25% of the bather capacity limits described in Rule 325.2193 of the Michigan Administrative Code;
      3. Limit capacity on the pool deck to ensure that persons not part of the same household maintain six feet of distance from one another.

Similar to recreational facilities, it is very difficult to ensure that the above requirements are being complied with unless the association hires a pool monitor.  As indicated above, the current executive orders require that anyone that is in a pool area wear a mask unless they are swimming.  Similarly, a pool monitor would also need to ensure that anyone in pool area that is not part of the same household maintains social distancing on the pool deck.  If a community association cannot enforce these restrictions, as well as other safety rules, the pool should remain closed.

 

Conclusion

     Board members for community associations will be faced with many difficult decisions regarding reopening recreational facilities. Keeping recreational facilities closed presents the least amount of risk. However, some community associations will exercise their business judgment to reopen recreational facilities as there is always some degree of risk that is inherent in the operation of a recreational facility. Community associations that choose to reopen should consult with their attorney, insurance agent and qualified vendors to ensure that they can reduce the multitude of risks associated with operating a recreational facility to the maximum extent possible.  However, community associations that have opted to re-open and have existing rules in place should update their procedures to ensure compliance with Executive Order 2020-175 and Executive Order 2020-176.

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.