Over the last several years, the hospitality industry has grappled with the requirements of the Americans with Disabilities Act (ADA) to make a number of recreational facilities, including swimming pools, accessible to individuals with a disability.
Title III of the ADA requires places of public accommodation, including hotels, to remove physical barriers in existing pools to the extent it is readily achievable to do so. In 2010, the Department of Justice (DOJ) published regulations under the ADA that contained specific accessibility requirements for swimming pools, and other types of recreational facilities.
The 2010 Standards created a great deal of confusion as to what, specifically, was required of hotel owners. Accordingly, in January 2012, DOJ released a document titled “ADA 2010 Revised Requirements: Accessible Pools—Means of Entry and Exit.” Pursuant to this release, DOJ specified that large pools (with more than 300 linear feet of pool wall) are required to have two accessible means of entry, with at least one being a pool lift or a sloped entry. Small pools (having less than 300 linear feet of pool wall) are required to have one accessible means of entry, provided it is either a pool lift or a sloped entry. Additionally, the release stated that only “fixed” pool lifts were acceptable, unless a hotel owner demonstrates that installing a fixed lift is not readily achievable. In such a case, a hotel could install a portable lift, provided that the lift is securely in place during all hours in which the pool is in operation. Finally, the document required that hotels comply with the 2010 Standards by March 15, 2012.
In response to a significant reaction by the hospitality industry, on May 24, 2012, DOJ released further guidance titled “Questions and Answers: Accessibility Requirements for Existing Swimming Pools at Hotels and Other Public Accommodations.” Pursuant to this release, the date for compliance with the 2010 Standards was extended to January 31, 2013. Additionally, DOJ clarified the definition of a fixed lift, stating that the critical issue is whether the lift is attached to the pool deck or apron in some way. Thus, a portable lift may be considered a fixed lift as long as the lift is attached to the pool deck. This is an important clarification because, initially, there was some confusion over whether a lift that was portable in any way could satisfy the 2010 Standards.
Importantly, compliance with the 2010 Standards is only required if compliance is readily achievable. The May 2012 guidance released by the DOJ clarified that the following factors should be considered in determining whether an action is readily achievable:
- The nature and cost of the action;
- The overall financial resources of the site or sites involved; the number of persons employed at the side; the effect on expenses and resources; legitimate safety requirements necessary for safe operations, including crime prevention measures; or any other impact of the action on the operation of the site;
- The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
- If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
- If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity. Unfortunately for hotel owners, several of these factors are somewhat amorphous in practice, and legitimate concerns exist that DOJ will take a far broader view of what constitutes “readily achievable” in enforcing the 2010 Standards.
Certainly, if a hotel is able to install a fixed pool lift and take the other steps required by the 2010 Standards, it should promptly do so. Otherwise, consistent with the recommendation of DOJ, hotel owners should develop a plan to provide access to its pool as soon as it becomes readily achievable.
By: Michael Hourigan