In California, a homeowners association is permitted to implement various rules regarding swimming pools and spas.
However, HOAs cannot prohibit children from using swimming pools, establish adults-only pools, or establish adults-only times. HOAs also cannot forbid children under 18 from using the swimming pool without an adult, or prohibit all non-toilet trained children from using the swimming pool.
The Center for Disease Control ("CDC") has determined that swim diapers are not effective in preventing contamination. Although swim diapers prevent solid feces from escaping (assuming they are properly fitted and changed often), they cannot prevent leakage of urine or diarrhea, which contain infection-causing germs. (Some refer to swim diapers as "fecal tea bags.")
The CDC has adopted a "Vessel Sanitation Program" that strictly prohibits children in diapers or who are not toilet trained from using public swimming pools and whirlpool spas on cruise ships. This is to prevent pool contamination and the spread of gastrointestinal illnesses. Accordingly, based on the CDC's rulings, a HOA could and should adopt similar restrictions for their swimming pools and spas. However, HOA boards should be aware that various anti-discrimination laws prohibit discrimination based on age. The HOA rules must be properly drafted to apply neutrally to all persons who cannot control their bladder or bowels, not just children.
The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.