COVID-19 and the Aquatic Industry: Swimming through the Legal Landscape of Uncharted Waters

The Centers for Disease Control (CDC) reports swimming is the fourth most popular recreational activity in the United States and the most popular recreational activity for children (ages 7 to 17). Statistics further show 36 percent of children and 15 percent of adults go swimming at least six times a year in the United States. As the warmer months approach and the effects of cabin fever mount among the millions of Americans currently engaging in restricted movements and social distancing, it is likely that owners of commercial swimming pools (e.g., public pools, country club pools, homeowner association pools, hotel pools, etc.) will see unprecedented usage and increased pressure from patrons to continue to open, operate, and maintain safe aquatic facilities in this time of national emergency. There are several legal issues that owners of these aquatic facilities should consider as the COVID-19 crisis unfolds.   

1.         Can the COVID-19 virus spread through swimming pools?  If so, how long can it live in water? 

According to the CDC, there is no evidence COVID-19 can be spread to humans through the use of swimming pools. Proper operation, maintenance, and disinfection (i.e., with chlorine or bromine) of swimming pools should remove or inactivate the coronavirus; however, swimmers can still catch the coronavirus at a pool by touching a surface that has the virus on it or through respiratory droplets from an infected person entering the body orally, nasally, or possibly through inhalation into the lungs. While the coronavirus cannot spread through water, it can still spread by close swimmer to swimmer contact or the touching of contaminated surfaces around the aquatic facility (e.g., ladders, handrails, flotation devices, etc.). 

2.         Should commercial swimming pools continue to operate/open in the summer months? 

Given the fluid situation of the COVID-19 crisis, the answer changes daily. Owners of commercial swimming pools should evaluate the status of any federal, state, or local orders governing ongoing operations at the time of opening. Currently, the federal government has not mandated closure of any commercial swimming pools; however, several states and local governments have issued executive orders mandating closure of all non-essential businesses, and, in some states, the executive orders apply to recreational facilities. For example, a recent executive order enacted in Pennsylvania has resulted in the closure of public swimming pools, health club swimming pools, and local YMCA swimming pools. The Florida Department of Health has recommended individuals avoid commercial swimming pools but has not mandated a statewide closure. 

Whether owners of commercial pools should close or delay summer openings is subject to the individual state and local requirements. Closure will depend on the status of the commercial swimming pool and any definition of non-essential business or recreational facility developed by the applicable governing body. It is likely both public and health club-operated swimming pools  will be subject to an executive order mandating closure of non-essential businesses. The issue is less clear with respect to swimming pools operated by homeowner associations. If the applicable governing body issues the homeowner association a permit to operate, then it is likely the swimming pool will be subject to a closure requirement issued by the state or local authority. Owners of commercial swimming pools should contact their state or local health department for information regarding whether opening to patrons is permissible.     

3.         If it is determined commercial owners can open swimming pools, is there guidance they should follow for ongoing operations? 

If an owner opens a commercial swimming pool, he/she must comply with all applicable guidance issued by the federal, state, and local governments regarding operation. The owner  needs to ensure: (1) any social distancing requirements are met; (2) the swimming pool is properly circulating at all times; (3) regulatory-established sanitation levels are maintained during operations; and (4) proper care is taken to ensure the overall cleanliness of the aquatic facility. 

Owners should review and implement the guidance set forth in the CDC’s Model Aquatic Health Code and any applicable regulations established by state and local agencies. Owners of commercial swimming pools who elect to open may also wish to go above any applicable regulations by adjusting sanitation levels above minimum recommended regulatory levels, monitoring sanitation levels more frequently than required, and increasing the frequency of bacteriological testing by independent laboratories. 

Owners of commercial swimming pools who elect to temporarily close or not open a seasonal facility for the summer months should follow proper procedures to avoid creating environments that pose a health or safety hazard to the surrounding community. For example, owners should not shut off swimming pool circulation systems or use extra chlorine. This treatment has the potential to create a toxic environment. Owners who elect to temporarily close should ensure the swimming pool is inaccessible to swimmers and adequate circulation and sanitizer levels are maintained. Owners of seasonal commercial pools who elect not to open to swimmers this summer should go through the normal opening procedures to avoid creating a breeding ground for bacteria and infectious diseases.