The 2010 ADA rules requiring inns, hotels, motels and other public accommodations with pools and spas to meet certain accessibility requirements — so long as doing so is “readily achievable” — go into effect Jan. 31, 2013, for all existing recreation facilities, swimming pools, wading pools and spas. In certain instances, the modification or alteration of an otherwise exempt pool or spa that affects “usability” can also trigger the new accessibility requirements.
The rules require operators to install specific types and numbers of handicapped-accessible entry points in publicly accessed swimming pools and spas. For example, swimming pools with less than 300 linear feet of wall space must provide at least one accessible entry point in the form of either a sloped entry or fixed pool lift. Larger swimming pools must have at least two accessible entry points with at least one fixed pool lift or a sloped entry. There are also requirements for wading pools (at least one sloped entry) and spas (one accessible entry through a pool lift, transfer wall or transfer system). Pool lifts must be available, in position and ready for use at all times the pool or spa is open, and each pool or spa must have its own lift (lifts generally cannot be shared between pools). Pool lifts must also be attached “in some way” to the deck or apron of the pool, a requirement that is widely interpreted to mean portable pool lifts do not meet the new ADA requirements. However, the Department of Justice (DOJ) has stated publicly that, for the time being, it will not prosecute facilities that purchased portable pool lifts prior to March 15, 2012, as a matter of “prosecutorial discretion.” It is unknown, however, how long the DOJ will maintain this stance. Furthermore, the use of portable lifts, while presently not subject to DOJ prosecution, will not shield an owner or operator from private liability.
Lodging facilities and other businesses offering public accommodations must institute the above requirements on existing pool and spa facilities if doing so is “readily achievable.” The “readily achievable” standard is described as “easily accomplishable and able to be carried out without much difficulty or expense.” Unfortunately, DOJ has not provided detailed guidelines for how a “readily achievable” analysis should be conducted. The DOJ answered some FAQs with respect to the new rules and has listed factors to consider when conducting a readily achievable analysis. Some factors of note include: (1) franchisees need not consider the resources of its franchisor in performing its “readily achievable” analysis; (2) a facility may consider safety issues in its “readily achievable” analysis, but cannot consider insurance coverage or the potential for insurance rate increases in such analysis; (3) if an analysis determines that compliance is not “readily achievable,” the facility must have a plan in place to achieve compliance once it becomes “readily achievable” to do so.
The new ADA regulations and some interpretive guidance can be found here. The DOJ’s “Questions and Answers” on the application of the new regulations to existing pools at hotels and other public accommodations is available here.
If you have questions regarding the implementation of the ADA rules, please contact one of the members of McGuireWoods LLP’s hospitality, hotel and leisure group.