Update: New Jersey Department of Health’s Revised Requirements for Opening and Operating Community Association Pools

April 11th, 2021 | Community Association Law Blog

By Eric F. Frizzell. April 11, 2021.

As most community association boards know, the opening and operation of community association swimming pools must comply with Executive Orders issued by Governor Murphy and detailed standards issued in June 2020 by the New Jersey Department of Health (“DOH”). The DOH has since revised and supplemented some of those standards and we summarize key changes to them in this article. (For ease of reference, we refer to the original standards as the “June 2020 DOH Standards” and we refer to the totality of the standards, as revised, as the “Revised DOH Standards”).

– An association must not only “hire” but also “dedicate” adequate staff as part of the development and implementation of protocols for staff training and pool operations, which includes training personnel on COVID-19 awareness, cleaning and sanitizing.

– The role of the pool “ambassador,” a new position created by the June 2020 DOH Standards, has been expanded beyond monitoring and encouraging social distancing of patrons in the pool deck and pool. The ambassador now must also ensure that lounge chairs, umbrellas, towels, and other equipment provided by the facility for shared use will be available to one individual or assigned group at a time, and that the equipment is cleaned and disinfected after use pursuant to the procedures in the Revised DOH Standards.

– The role of the “COVID contact person,” another position created by the June 2020 DOH Standards, clarifies that the role of the contact person is to “interface with the local health department and general public” regarding the standards.

– An association must conduct a questionnaire of staff upon entrance to the facility. Any individual who is found to have a temperature of 100.4 or above, or who answers yes to any of the following or similar questions, must be denied entrance to the facility:

– Within the last 10 days have you been diagnosed with COVID-19, had a test confirming you have the virus, or been advised to self-isolate or quarantine by your doctor or a public health official?

– Have you had any one or more of the following symptoms today or within the past 24 hours, which is not new or not explained by another reason?

– Fever, chills, cough, shortness of breath, sore throat, fatigue, headache, muscle/body aches, runny nose/congestion, new loss of taste or smell, or nausea, vomiting or diarrhea?

– In the past 14 days, have you had close contact as defined at https://www.state.nj.us/health/cd/documents/topics/NCOV/NCOV_chapter.pdf with an individual diagnosed with COVID-19?

– Indoor bathing facilities must comply with the indoor capacity requirements outlined in Executive Orders and/or Administrative Orders.

– In the event of illness, staff and visitors must cooperate with the local health department and contact tracing personnel during a public health investigation and possible contact tracing of COVID-19.

– The June 2020 DOH Standards required that there be a COVID-19 emergency care area/room outdoors for the care of those who become ill while on-site. The Revised DOH Standards delete the word “outdoors”, indicating that the emergency room can be indoors.

– The sign-in sheet for staff and patrons that must be maintained to facilitate potential contact tracing efforts may now be done electronically.

– The hand sanitizer in the mandated sanitizer stations throughout the facility must now be at least 60% alcohol.

– Your association must now only “limit” rather than “prohibit” the sharing of furniture and equipment provided to pool users for use by the pool facility, including but not limited to lounge chairs, umbrellas, towels, and other equipment, except among immediate family members, caretakers, household members, or romantic partners. Given the fact that the revised standards do not provide any definition of “limit”, maintaining the prohibition would still be reasonable.

– Your association must now “discourage” rather than “prohibit” shared-use water play equipment, including but not limited to goggles, snorkels, fins, kickboards, pool noodles and toys, but pool patrons can be permitted to bring their own water play equipment to use themselves or with immediate family members, caretakers, household members, or romantic partners. Given the fact that the revised standards do not provide any definition of “discourage”, maintaining the prohibition would still be reasonable.

– If your association’s swimming pool area has facilities such as a waterpark, sand bottom pool, slides, rope ladders for play, interactive play attractions, leisure river, or devices intended to spray, squirt, shoot, dump, discharge or disperse water, you must comply with additional requirements as an “Aquatic Recreation Facility”. If you have any question about whether your association is an “ARF”, contact your attorney, pool management company or management company.

– Associations with indoor pools must also comply with the additional following requirements:

Limit patrons in indoor areas in accordance with current limitations on gatherings, as set forth in Executive Orders and/or Administrative Orders. Currently, Executive Order 230 (2021) limits indoor areas to 50% of the establishment’s indoor capacity.

Evaluate their ventilation systems and improve, where necessary, ventilation by increasing circulation of outdoor air as much as possible. The DOH states that using high efficiency particulate air (HEPA) filtration systems to enhance air quality should be considered.

Ensure that lap swimming takes place in one direction per lane or one swimmer per lane and require individuals to maintain social distancing.

Diving boards and slides are approved for use, but proper social distancing of bathers must be ensured.

Swimming lessons may be conducted (at both indoor and outdoor facilities).

Enhanced cleaning and disinfection of high touch points is required.

Use of indoor locker rooms should be limited. If your locker rooms are open, the number of patrons inside the locker rooms must be monitored to ensure social distancing is maintained.

Face coverings must be worn by spectators on the pool deck unless doing so would inhibit the individual’s health or the individual is under the age of two.

– New provisions regarding indoor air and ventilation (which ostensibly apply not only to indoor pools but other facilities such as locker rooms) have been added, which we quote in their entirety:

“A. Keep doors and windows open where possible and utilize fans to improve ventilation.

B. Inspect and evaluate the heating, ventilation and air conditioning (HVAC) unit to ensure that the system is operating within its design specifications.

C. Conduct routine maintenance as recommended by the manufacturer or HVAC professional.

D. Within the design specification of the HVAC unit:

1. Increase the volume of outdoor air to the maximum capacity while the facility is occupied.
2. Reduce the volume of recirculated air being returned to the indoor spaces
3. Increase the volume of air being delivered to the indoor spaces to the maximum capacity
4. Select maximum filtration levels for the HVAC unit.
5. Run the HVAC unit continuously while the facility is occupied.
6. Run the HVAC unit for at least two hours before and two hours after the facility is occupied.

E. Consider installing portable air cleaners equipped with a high efficiency particulate air (HEPA) filter to increase the amount of clean air within the facility.

F. Review and follow the latest CDC guidance for ventilation requirements.”

– Staff and patrons now must wear a mask/face covering (as opposed to only being “encouraged” to do so under the June 2020 DOH Standards) while on the pool deck, while not in the pool, and when social distancing of six feet cannot be maintained.

– In addition to providing staff with masks/face coverings and gloves, your association must also provide them with unspecified “other PPE’s” (personal protective equipment).

Please let us know if you have any questions about the original June 2020 DOH Standards or the Revised DOH Standards. The decision regarding whether to open your association’s swimming pool involves consideration of many factors that our law firm has discussed in prior communications and with our clients, such as the lack of insurance for claims against associations and their boards.

This bulletin is for informational purposes only and does not constitute legal advice. Check with your association’s attorney before taking legal action.