Interest in the specially exempt status of community association pools has increased. This interest has been fueled by community association board members hoping to offset substantial costs incurred for COVID ambassadors and cleaning staff. As specially exempt public recreational bathing facilities, community associations may legally choose to operate their pools without lifeguards. However, this decision must be carefully considered and made only after consultation with the association’s legal counsel, insurance agent, and pool operator.
New Jersey Bathing Code
The Public Recreational Bathing Code is part of the New Jersey State Sanitary Code set forth at Chapter IX, N.J.A.C. 8:26, et seq. (“Bathing Code”). It may seem counterintuitive, but community association pools used by two or more dwelling units are considered “public recreational bathing facilities” for purposes of these regulations even though they are not open to use by the public.
Specially Exempt Facility
Under the Bathing Code, a community association is a “specially exempt facility” if it restricts the use of its swimming pool to unit owners and their invited guests. Unless they have a diving board, water slide or similar item at the pool, these specially exempt facilities are exempt from mandatory compliance with the first aid personnel and lifeguard requirements of the Bathing Code. (They must still comply with all other Bathing Code requirements.) In other words, a community association may voluntarily employ the lifeguards required by the Bathing Code or it may exercise the exemption and operate its pool without lifeguards. Those community association pools which do not voluntarily comply must post signage that states, among other warnings, “NO LIFEGUARD ON DUTY”.
Some community associations, faced with having to employ additional lifeguards under the new Bathing Code requirements but not wanting to operate with zero lifeguards, wondered whether a “hybrid” approach would work. The Department of Health has clarified this and the answer is yes. For purposes of Bathing Code compliance, a specially exempt facility (after declaring its exempt status) may maintain fewer than the required number of lifeguards or it may have no lifeguards. A specially exempt facility utilizing this “hybrid” approach may (but is not required to) post an additional sign identifying when the lifeguard is on site.
A community association exercising its exemption by either utilizing zero lifeguards or the “hybrid” approach will be able to obtain a permit to open and pass their mid-season inspection on this basis providing all other Bathing Code requirements are met. However, community association boards must understand that compliance with the Bathing Code in this respect does not insulate the Association from liability in the event of personal injury at the pool. If an incident occurs, many factors will be considered. But liability may come down to whether it was reasonable to have no lifeguards or fewer than the required number even if this operating decision was compliant with the Bathing Code. When a community association board makes the decision on lifeguards it should carefully evaluate all relevant factors such as pool usage and community population to ensure that this decision is right for the community. All residents must be made aware of the change; a written acknowledgment upon receipt of a pool badge might even be appropriate. The board of trustees should consult with legal counsel so that all board members understand the additional potential liability the association may be assuming. Legal counsel may recommend enacting a tort immunity provision in the community to help insulate the association from certain types of liability. If a tort immunity provision has already been enacted, the board members should understand the application and limits of that immunity. Legal counsel will also want to review the proposed contract with the pool operator to negotiate any unfavorable provisions and to help the board of trustees understand the contract terms.
If a community association has an existing contract with a pool operator, it cannot make changes to the lifeguard and operation requirements without the pool operator’s approval. The association will have to work with the pool operator to agree on addendums to the contract. Whether an existing contract must be amended or a new contract is being negotiated, not all pool operators may be willing to operate a pool if there are no lifeguards on duty or if there are fewer than the required number of lifeguards under the Bathing Code. Some pool operators may do so only with certain contractual requirements such as requiring the association to sign a written acknowledgement that the association (and not the pool operator) made, and is responsible for, the lifeguard decision. Pool operators may even require the community association indemnify the pool operator for any incidents. Doing that is no small decision. It is also not recommended. Indemnifying the pool operator may require the community association to take on most or all of the liability risk arising from the swimming pool. If a community association proceeds with such an agreement it must be written as narrowly as possible so that liability not related to the lifeguard staffing is excluded from the indemnity contract. Board members must understand this potential liability (and the potential costs) when contracting with a pool operator as a specially exempt facility.
Any community association board which is considering exercising its lifeguard exemption under the Bathing Code must also review insurance coverage issues with its agent. Is coverage adequate under these new circumstances? If insurance coverage must be increased there may be additional premium costs to consider. Additionally, because this may represent a change in circumstances on which coverage was granted, the community association should also ensure that its liability carrier does not object to the change in lifeguard status or any association agreement to indemnify the pool operator. It may be that no changes must be made and insurance costs will not increase. Community association board members must still explore these possibilities first before making a decision on their specially exempt status.
Operating without lifeguards or with fewer lifeguards than required under the Bathing Code may be the right decision for some community associations. A community association is legally entitled to operate in this way. The decision to do so, however, should be made carefully and only after consultation with the association’s legal counsel, insurance agent, and pool operator.