PP22 6 Web Commercial

Getting at Ease with Legalese

Learning the legal lingo to lessen liability

Residential pools and commercial pools are completely different beasts. Residential service techs might visit 20 to 30 pools in a single day and only see a particular pool on their route once, maybe twice per week. For commercial pool techs, many jurisdictions require chemical and safety checks every day, if not multiple times per day. Both jobs require a strong attention to detail; techs must pick up on changes to pool operations very quickly during each short visit. 

Service companies also need to understand that the stakes are much higher when it comes to commercial pools. In a residential setting, a homeowner not being able to use their pool for a few days or a week is an inconvenience. In a commercial setting, a pool closed for a few days or a week is a significant revenue loss, the cause of bad PR, increased liability or worse. 

These are the basics of risk management and how you can audit your operation to make sure that commercial pool techs understand the standards by which they’re being measured in the eyes of the law. A residential pool tech might wear a body camera or use GPS tracking on a work truck to prove each pool on the route was visited each week. 

Let’s start with definitions

Standard of care refers to what a reasonable person expects under the circumstances. This is not just one person’s preference but a look at the larger industry in a given area. In the car industry, seatbelts are standard. In the hotel industry, there must be clean bedding for each guest. In the pool industry, we could say it is standard for bathers to not experience suction entrapment, chemical burns, bacterial infections, brown water, etc. 

Duty of care refers to why you must meet the minimum standard of care. For many of us, that falls under the obligations we have as an employee to the organization or person who is compensating us for the hours we work. In the pool industry, duty of care can be the financial contract that exists with a site to provide a certain level of care, often in accordance with local swimming pool regulations. 

Negligence is what happens when we do not meet the minimum standard of care and something bad happens. It could be accidental (by omission) or intentional (by commission). In either case, we probably should have known better based on our experience, training or information available to us at the time. We did not anticipate the situation before it occurred, and there were consequences as a result.  

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Liability refers to the consequences of that negligence (bad decision) and how it affected someone. Was it minor, i.e., refunding a person’s admission to the water park because certain amenities were closed? Or was it major, like a legal claim someone was injured because of mechanical malfunction unnoticed because of a missed safety inspection? Liability is determined by a court of law and may involve financial penalties, damages or insurance claims. 

Risk management is not about doing fake work to appease an arbitrary standard; it’s about adjusting your day-to-day operations with the knowledge that factors outside of your control will impact your work.  

One of the biggest gaps I consistently see in our industry is a failure to establish standard operating procedures, checklists and other documentation that supports consistent pool operations. Yes, it is a lot of work to get the first few sites set up — everyone hates doing paperwork, myself included! — but without documented standards, there is no way to measure a pool’s operational performance over multiple visits. 

Pool operations are not static. They are constantly fluctuating based on factors such as bathers, weather, chemicals, mechanical equipment, operator, etc. It’s a mistake to think one person can shoulder all a commercial pool’s requirements from a legal perspective.  

Action Items

  • Understand the legislation. Print copies of relevant state and county codes (swimming pool, construction, health and safety, employment, etc.) and review them with your team. Failure to understand the law in your area as the minimum standard is not a good excuse, nor a legal defense. 
  • Meet with an insurance broker and review your coverage. Do you have enough? Probably not. A child drowned last June at a Swimply pool rental in New Jersey. If your company had serviced that pool, are you ready to be named as a party in that lawsuit? 
  • Review existing documentation for effectiveness, accuracy and safety at the rate of one or two documents per month, so that you actually do it. Don’t promise yourself you will rewrite them all during the offseason; it will never happen. 
  • Expand your health and safety program. If you don’t have the internal capacity to do this, hire a health and safety auditor or consultant who does this full-time. They will help with routine documentation like hazard assessments, safe work procedures, pre-job checklists, etc. These can then be expanded into core documents like an employee handbook or operations manual. 
  • Keep track of near misses. Times when you could have faced legal action but managed to avoid it. Analyze what fundamental gaps in knowledge, training and/or documentation contributed to these situations occurring.

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