The New Jersey Public Recreational Bathing Facility Code, N.J.A.C. 8:26-1.1, et seq., (“Bathing Code”), has changed as of January 16, 2018 and all pools in community associations with three or more dwelling units will be impacted.

Some of these changes are minor and most community associations will have no difficulty adapting to them. Other changes will result in increased costs to pool vendors, which may be passed onto the association. A few of these new requirements will require substantial unexpected and unbudgeted costs to associations. There may even be some confusion regarding who is obligated to comply with the Bathing Code.

All New Jersey Community Associations Must Comply With the Bathing Code

One may think that the Public Recreational Bathing Code would not apply to private community association pools. However, community association swimming pools, wading pools, and hot tubs/spas are considered public recreational bathing facilities as long as they are used by three or more dwelling units. Even though the general public cannot use these facilities, they must be operated in compliance with the Bathing Code.

Specially Exempt Facilities

If a community association restricts use of its pool to owners and invited guests only it is considered a specially exempt facility under the Bathing Code. As a specially exempt facility – and as long as it does not have a diving board, water slide, or other risky pool amenity – a community association can choose to voluntarily comply with the first aid personnel and lifeguard requirements of the Bathing Code or choose not to comply.

A community association which chooses not to comply, must still comply with all other requirements of the Bathing Code. Its board of trustees should carefully review any decision on compliance with the association’s insurance agent and legal counsel to understand the potential liability and coverage issues, and to ensure that the decision is in the best interests of the association.

The exemption is not new to the Bathing Code. However, the Bathing Code now requires a community association to inform the local health authority whether the association intends to voluntarily comply with the first aid personnel and lifeguard requirements or if it will exercise the exemption.

New Requirements for Opening the Pool

There are some important new requirements that each community association will need to address with its pool vendor well before the pool opens. Some of these may be quite costly. Following are some of these new requirements.

• Approval to open. Except for new pools, inspection is no longer required before the pool opens for the season (or for year-round pools, before re-approval). Instead, each pool must submit a Checklist certifying compliance with the Bathing Code to the local health authority. The approval to open – and the issuance of the permit to open – will be based on the information provided in that Checklist. Seasonal pools must have the Checklist submitted at least 21 days before the pool opens. Year-round pools must submit the Checklist at least 30 days before the approval expires.
• Annual bonding and grounding. While community associations are used to getting a bonding and grounding certificate, those with seasonal pools will now have to get one each year before the pool opens.
• New equipment requirements. Assist poles which are telescoping or life hooks with snap-on hooks will have to be replaced. The contents of the first aid kit are based on the size of the pool so pool vendors will need to update them. (Don’t forget: the first aid kit must be restocked within 24 hours after use.) A full spine board – which all community associations should already have – must be kept poolside now. Pools must have at least one throw line which reaches the other side of the pool. Getting much of the attention, due to cost, is the requirement that all lifeguarded pools must have an automated external defibrillator (AED). Another expensive item will be lifeguard platforms if applicable. Previously, only pools with 2000 square feet of surface area required platforms. The code now requires that pools with diving areas and/or a water depth greater than 5 feet must also have lifeguard platforms.
• Pool address. The address of the pool must be posted along with the emergency phone numbers.
• Updated pool rules. Posted pool rules must be updated to reflect the change in swim diaper requirement (see below).
• Trash cans. Trash cans in the bathrooms/dressing rooms must be “fly tight”, water tight, and have a tight fitting lid.
• Initial water sample. A water sample will have to be analyzed and results obtained before the pool opens.
• Aquatics facility plan. While a written standard operating procedure aquatics facility plan is not a new requirement, there is some new information that must be included in the plan. The plan must now also include the location of the emergency shut off switch for the suction outlets, the hours of operation of the pool, the schedule of operational activities (such as water testing), and the zone of protection plan for lifeguards. Additionally, while the Association has always had to have a safety policy on water toys and floats it now must be included in the written plan.

New Requirements During Pool Season

There are also some new requirements that will impact community association pools once the pool is operating.

• Documented TPO visits. A trained pool operator (TPO) must visit the pool at least once per week. The TPO must ensure regulatory compliance with each visit and document those visits in writing. When your pool is inspected, the local health authority may request these records and they must be available.
• New pool personnel certification. Pools which are over 2000 square feet of surface area must be under the supervision of an individual with pool director training certificate. Pool personnel have until January 16, 2019 to meet this requirement.
• Swim diapers. Children in diapers no longer have to wear plastic pants with snug fitting elastic waist and legs. Any diaper specially designed for immersion in water will be acceptable. Posted bathing code rules must be changed. It is important that both property managers and board members understand this change for enforcement purposes. Enforcing the old rule could lead to legal troubles against the association.
• Daily inspection of suction outlet covers. Hot tub/spa suction outlet covers must be inspected daily to ensure they are firmly attached and in sound condition. Associations should ensure this is part of its pool vendor’s daily inspection protocol. If the cover is missing, broken or can be removed without tools, the hot tub/spa must be closed.
• Expedited water testing. Water sample processing requirements have been expedited and associations may see surcharges related to increased costs of testing and reporting.
• Pool inspections. All seasonal pools will be inspected at least once during the season. Year-round pools are to be inspected at least twice during the year. The inspector must advise as to the outcome of the inspection within ten business days after inspection. After inspection, pools will receive an evaluation placard which must be displayed at the entrance to the pool. The placard will read: Satisfactory (substantial compliance); Conditionally Satisfactory (one or more violations requiring reinspection); or Unsatisfactory (one or more violations posing imminent health or safety hazard requiring pool closure).

New Lifeguard Requirements

The Bathing Code is now more specific with regard to the number of lifeguards required at pools and what they can do while on duty.

• Number of lifeguards. Pools which are less than 2000 square feet of surface area with fewer than 61 bathers must have a least one lifeguard. Those over 2000 square feet must have at least two guards. The local health authority can increase these requirements based on pool configuration, number of swimmers, and other factors. This change could result in substantial unbudgeted cost to many pools.
• Zone of protection. Lifeguards must watch the pool based on a zone of protection plan (presumably only for pools with more than one lifeguard).
• Lifeguard distractions. New to the Bathing Code is that lifeguards may not be distracted by activities such as texting, socializing or reading. There have been some reports that the Bathing Code changes will prevent lifeguards from performing duties that distract away from the pool (such as checking badges). The Bathing Code does prohibit such duties, however, this is not new. The Bathing Code previously prohibited duties that distract lifeguards from watching the pool. Pool vendors may be anticipating some new scrutiny with regard to lifeguard duties.

The above are just some of the requirements of the new Bathing Code and these may be a challenge at first for community associations. By relying on a competent and experienced pool vendor to work through these new requirements, an association can ensure its pool opens on time and stays open.

Community associations should also continue to consult with legal counsel on all new pool contracts to ensure that appropriate protective provisions are included.