Changes to the New Jersey Bathing Code May Affect Your Association’s Pool


It’s almost swimming pool season! Before your residents snag their favorite poolside spots, your board needs to know about some state rules that will affect how you operate your community association pool.
 
In January, 2018, the New Jersey Department of Health announced changes to the bathing code. That code applies to all multifamily community pools, public and private, if they are accessible to three or more families. Some of the new rules affect all pools in the state; others are specific to pools of certain sizes and/or depths.
 
To understand the new rules and how they may impact your community association, we spoke to Ben Basch, chief development officer of American Pool Enterprises, a FirstService Residential partner that designs, services and staffs community association pools nationwide.
 
Basch explained that the code’s changes are in primarily three categories: administration, equipment and supervision.
 
Administrative changes:
  • Associations must complete a preseason checklist and submit it to their local health authority no less than 21 days before they plan to open the pool. If you’re aiming for a traditional Memorial Day weekend opening, that means no later than May 5.
  • If your community has a year-round indoor pool, you must complete the same checklist and submit it no less than 30 days before your current approval expires.
  • Communities can expect to see higher independent lab testing fees. The state has updated the requirements for the lab testing procedures increasing the cost of compliance. Independent labs must test the water in the pool and culture it for bacteria weekly. In general, your pool company will contract with the independent lab and include that service as part of your contract, but there will be an increase in the cost.
  • Expect a visit from a health department inspector, at least once during the summer pool season for outdoor pools and twice a year for indoor pools. This is in addition to any pre-opening inspections.
  • Previously, the upper limit on chlorine in pools was 4 parts per million. While the lower limit has stayed at 1 ppm, the upper limit is now 10 ppm. There is no requirement to chlorinate at the higher level, but it is now an option and might be used during extremely hot weather, for example.
  • All pools constructed after Sept. 7, 2010 or those which have been significantly altered must comply with the New Jersey uniform construction code. If your association is planning a significant change to an older pool, such as replumbing or a new filtration system, you must comply with that code. Cosmetic changes, resurfacing and replacing like-for-like items would not change a facility’s otherwise “grandfathered” status.
 
Equipment changes:
  • If your pool has a lifeguard, you must now have an automated external defibrillator (AED) on hand at all times.
  • If your pool is more than 2,000 square feet in size and/or more than 5 feet deep, you must now provide elevated lifeguard stands for better visibility. They can be portable, so there’s no need for permanent construction or modifications to the pool deck.
  • All wading pools must now have signs saying that children must be supervised by adults or guardians, even if there is a lifeguard on duty.
  • It’s long been a requirement for pools to have a first aid kit available poolside. The new rules update the contents of that first aid kit, requiring items such as additional cold packs and resuscitation masks.
Supervision changes:
  • If your pool is more than 2,000 square feet, you must now have at least two lifeguards on duty. Basch estimates that this change will affect approximately 30 to 40 percent of community associations. “A lot of communities have a standard 30 foot by 60 foot pool, which comes in at 1,800 square feet, just under the limit,” he explains. “If you have a regulation lap pool, however, that’s going to be 75 feet by 25 feet, which is over the threshold and must be staffed by two lifeguards. Older communities and lifestyle communities tend to have larger pools and are more likely to be affected by the new rules.”
  • Beginning in 2019, all pools over 2,000 square feet must have an adult supervisor who has received a pool director certification, but the requirements for that certification have not been defined by the state yet.
  • The rules now also further emphasize that lifeguards must not have secondary duties while guarding (checking badges, supplying towels). They also are prohibited from wearing headphones or earbuds and using a cell phone while on duty.
Some of these rule changes come with a cost, especially the additional lifeguard for larger pools and the AED. For associations that can’t spend that money, the state of New Jersey does label all community association pools “specially exempt facilities.” Exempt pools must still follow the requirements for the preseason checklist, lab testing, first aid kit, wading pool signage and more, but they can choose to claim the exemption and opt out of the lifeguard requirements and the AED requirement.
 
Some recent code interpretations point out that if an association takes the exemption, they can provide fewer lifeguards than would be otherwise required. In this case, they still must post the “No lifeguard on duty” notice since they have not voluntarily complied with the lifeguard provisions of the new code. Communities that claim the exemption might also choose only to staff lifeguards when the pool is typically busy, on weekends for example. It has also been pointed out that they can also choose to increase the lifeguard staff but claim the exemption to avoid purchasing the AED. At this moment the state has taken the stance that if an association does not voluntarily comply with the lifeguard and first aid aspects of the code then they will not comment on partial compliance versus a non-guarded facility.
 
Of course, exercising that exemption comes with its own cost in the form of greater risk to the community, both in terms of personal injury or even death and in liability. “One lawsuit would far exceed the costs of the extra staffing and the AED,” Basch says. “A significant insurance claim will increase those rates as well.”
 
Some insurance carriers will not cover pools that don’t have lifeguards, so if you have one and don’t want to comply with the new rules, check with your insurance agent before making a decision. “I suggest that all boards consult with their association attorney, insurance agent and professional swimming pool management company before making a decision,” Basch explains. “American Pools, for example, will not service pools in communities that choose to have one lifeguard but not comply with the state law. That’s a greater liability than not having a lifeguard at all because residents will expect a higher level of safety and response than if they know there’s no lifeguard. In a larger pool, one guard may not be able to provide the most effective response. If you go to no lifeguards at all, at least people are made aware that there’s no coverage as opposed to some coverage that is likely inadequate.”
 
When consulting with your association attorney, be sure to check your governing documents and make sure that any change to pool staffing doesn’t require a vote or amendment before making a decision.
 
Whatever decision your association makes, you must notify your local health authority in writing how you intend to operate your community pool.
 
It’s also important to make residents aware of the decision and why it’s being made. Post adequate signage around the pool area, communicate any change to the community website, and send it to residents via email and text if possible. FirstService Residential Connect is a proprietary system that includes a mass messaging tool to effectively and easily communicate with your entire community at one time.
 
Summer is around the corner. Knowing the state rules regarding your pool and following them will help keep your community’s residents and finances safe and help keep everyone happy and healthy while enjoying fun in the sun.

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