As noted in a prior client advisory, (see Tri County Swimming Pools Closed Until Further Notice) Boards of community associations with pools have been struggling with the decision of whether to open their pools for the 2020 summer season. On May 28, 2020, the health departments of Oakland, Wayne and Macomb County, as well as the City of Detroit, ordered the closure of all public swimming pools until further notice to protect against the spread of COVID-19.
On June 1, 2020, Michigan Governor Gretchen Whitmer signed Executive Order 2020-110. The Executive Order moved the State of Michigan into Stage 4 of the “Michigan Safe Start Plan.” The Order provides that u** nless otherwise prohibited by local regulation**, public swimming pools may open as of June 8, 2020. Reopened swimming pools must be outdoors and must limit capacity to 50% of their capacity limits and must follow guidance from the State’s Department of Health and Human Services, which has yet to be issued. All indoor public swimming pools must remain closed until further notice.
The Executive Order effectively puts local municipalities in control of whether and when to permit public pools to reopen. Pursuant to MCL 333.2453, if a local health officer determines that control of an epidemic is necessary to protect the public health, the local health officer may issue an emergency order to prohibit the gathering of people for any purpose and may establish procedures to be followed by persons, including a local governmental entity, during the epidemic to insure continuation of essential public health services and enforcement of health laws. While local health officers are permitted to maintain restrictions on public swimming pools under the Executive Order, almost immediately after the Executive Order was announced, Macomb County and Oakland County announced they were rescinding their respective four-day old orders that closed public swimming pools in their counties. Wayne County is reportedly drafting an order to likewise rescind its prior order. It remains to be seen whether the City of Detroit will follow suit.
A community association must comply with all restrictions and requirements that govern the operation of commonly-used amenities, and must also consider other practical concerns such as increased cost and potential lack of insurance coverage for claims related to COVID-19 (see Opening Common Amenities During COVID-19). To the extent any governmental requirements (i) impose restrictions or protocols when using “essential” common amenities, or (ii) prohibit or restrict the use of non-essential common amenities, the Association is required to comply with the requirement. These restrictions may be described in Executive Orders from the Governor, or they may be imposed in other ways, like at the city or county health department level.
As a reminder, under the public health code MCL 333.12527 a public swimming pool shall not be operated without a license and MCL 333.12533 provides that a person who violates this section is guilty of a misdemeanor.
If there are any questions, please contact one of our firm’s attorneys.