Few issues have produced more debate and concern within the hospitality and aquatic communities than the accessibility of public pools and spas as required under the 2010 Standards for Accessible Design, adopted pursuant to the Americans with Disabilities Act.
While new and existing facilities were originally required to comply with the new requirements as of March 2012, a Technical Assistance Document issued by the Department of Justice at the eleventh hour threatened the validity of many compliance efforts in existing facilities and created mass confusion over the type of swimming pools lifts that would be permitted. After intense debate and lobbying from industry and disability advocates, the DOJ issued its final ruling, establishing a final deadline of 31 January 2013 for existing facilities. It also clarified the requirements when pool lifts are used. The 15 March 2012 deadline for new and renovated facilities remained.
How we got here
The ADA was enacted in 1991, and in 1995 the U.S. Access Board began working on regulations to address facilities not covered under the original statute. The provisions for swimming pool access were the product of a 15-year process involving input from the National Center of Accessibility and the hospitality, aquatic and disability communities. The regulations provided that all pools and spas in public accommodations provide “accessible means of entry.” The primary means must be a pool lift or sloped entry. The secondary means in a larger pool may consist of a transfer wall, transfer system or accessible pool steps.
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Steven Getzoff |
Because of the exorbitant costs associated with adding a sloped entry, an overwhelming majority of the existing facilities have chosen the pool lift as the primary or sole means of compliance. Facilities began installing portable lifts, which are less expensive and easier to install. On 31 January 2012, however, the DOJ issued a Technical Assistance Document on accessible pools, which specified:
- If a pool lift is used as a primary means, it must be fixed. A portable lift may only be used when installation of a fixed list is not readily achievable.
- Under any circumstances, the lift must be in place at all times the pool/spa is open. It may not be kept in storage until requested.
- The sharing of a lift between two or more bodies of water is not permitted
Following the release of this document, a meeting between DOJ and hotel representatives occurred. In this meeting, the DOJ stated that in their opinion:
- Fixed means attached, meaning the lift must be attached to the deck in some manner so that if the space were turned upside down, the lift would remain attached to the deck.
- Portable lifts with wheels that lock to prevent movement are not fixed unless attached in some other manner to the deck, which can include a permanent sleeve anchor into the deck if the connection point is secured with screws, bolts or clamps.
- If the lift is attached in a manner that requires a tool for removal, it would be considered fixed.
Following these interpretations, a large scale lobbying effort ensued. The DOJ extended the deadline for existing facilities until 15 May 2012 and solicited further comment as to a longer extension. On 26 March 2012, the undersigned was privileged to join a large contingent including representatives of the hotel and aquatic industry who met with President Obama’s Domestic Policy Council, and on 24 April 2012 a hearing was held before the U.S. House of Representatives Judiciary Committee.
Pool industry representatives expressed their concerns about the elimination of portable lifts, and the hotel industry expressed its concern with the requirement that lifts remain in place, citing potential safety concerns in non-lifeguarded pools. On 21 May 2012, the DOJ issued a final rulemaking and Q-and-A in which it extended the compliance date for existing facilities one last time until 31 January 2013. It also modified some of its interpretations and held fast on others.
The final requirements for pools and spas
For a vast majority of pools, a single means is required, which may be a pool lift or sloped entry. While the DOJ maintained the requirement that the pool lift be fixed, it relaxed its definition of fixed to merely mean attached to the pool deck in some manner.” The prior verbal statement from the DOJ with regard to turning the deck “upside down” or requiring tools to remove are not included. Therefore, portable lifts can still be used, provided they are attached in some manner and all of the leading manufacturers have developed sleeves or other kits for this purpose. In addition, the DOJ allowed portable lifts purchased prior to 15 March 2012 to be used as originally installed. While the deadline for existing facilities expires on 31 January, properties with seasonally operated swimming pools need to be in compliance when the pool opens.
If installation of a fixed lift is not readily achievable, the public accommodation may then consider alternatives such as use of a portable pool lift that complies with the 2010 standards. All lifts must be capable of self activation, meet a series of detailed requirements concerning size and weight capacity and must be placed in water no greater than four feet in depth, unless the entire pool exceeds that depth.
The DOJ still requires that lifts remain in place at all times the pool or spa is open but clarified that they may be stored after hours or at the close of the season. The final rulemaking also specifically prohibits the sharing of a lift between two or more bodies of water, which the DOJ considers to be unsafe. All lifts must be maintained in good working order.
As with all aspects of the ADA, compliance by existing facilities is required to the extent that it is “readily achievable.”
What does “readily achievable” mean in this context?
The criteria for determining what is readily achievable are well documented by the DOJ (see: ADA Checklist for Readily Achievable Barrier Removal). In its final rulemaking on swimming pools, and in meetings with representatives of the hotel industry, the DOJ stated that in determining whether installing a fixed pool lift is readily achievable, it will consider all the relevant factors, including the available resources of that facility and the resources of a parent company if such exists.
While pool industry professionals can assist the property in evaluating costs and logistical issues, a final determination as to whether or when installation of one or more lifts is readily achievable requires an internal financial analysis. If full compliance is not readily achievable, the facility must do what it can by the 31 January deadline, such as the use of a portable lift.
Logistical and safety issues might also be considered (including the need for equipotential bonding, and other state or local requirements). However, the DOJ staff specifically stated they do not consider the claimed risk of injury from unsupervised misuse of a lift as a legitimate safety issue. Nor will they consider anticipated increased insurance costs arising out of the presence of a lift as part of the equation.
Facilities with multiple bodies of water should consider bringing at least one or more into compliance as soon as feasible. Facilities that are not in full compliance by the 31 January deadline must also have a “barrier removal plan,” including a plan to set aside funds and taking other steps to achieve compliance. The DOJ has also emphasized that a facility’s financial circumstances could change from year to year, making future compliance more readily achievable. Tax credits might be available, and an option to lease a pool lift exists, which may make a hardship argument more difficult to demonstrate.
Is there a legitimate safety risk?
In short, no one knows as yet. Most jurisdictions do not require the presence of a lifeguard at hotel pools and members of the hotel industry and several manufacturers have expressed their concern about the possible misuse of a lift at pools that are not regularly supervised by a lifeguard. Because these lifts are only first appearing in 2012, there have been no documented reports of injury in this manner, although there have been reports of damaged or vandalized lifts. The DOJ has categorically rejected the notion that a pool lift creates an additional safety risk.
Because potential safety concerns were expressed so adamantly by the American Hotel & Lodging Association and other hotel groups, however, hotel owners and operators might want to consider taking some measures to address the perceived risk, including additional signage or periodic observation or surveillance. As stated above, lifts may be stored after hours.
The DOJ did cite a safety risk associated with the sharing of a pool lift because the lift might not be present at pool sides when a person with disabilities seeks to exit the pool.
Will there be any more revisions?
The DOJ views the issue as closed, so not in the foreseeable future.. The highly partisan nature of this issue (as witnessed in the form of mass protests during the 24 April 2012 hearing) effectively forecloses any potential legislative action.
How will these requirements be enforced?
The DOJ does not inspect facilities for compliance. States may choose to incorporate the federal provisions into their law or code and provide their own enforcement and direct action against noncompliant facilities may be taken by local building or health officials enforcing state or health building codes that reference the new guidelines.
As with other aspects of the ADA, the primary concern is individual civil lawsuits (sometimes referred to as “drive by lawsuits”) against noncompliant facilities, seeking an injunction to compel compliance, and recovery of attorney’s fees and actual (usually nominal) damages.
How can the hospitality industry members protect themselves from liability?
Properties need to ensure their pools and spas are included in a barrier removal plan. If there are multiple bodies of water (i.e., pool and spa combination) then all have to be addressed in the plan. Lifts or other means must be inspected regularly to ensure they remain safe and functional and should be added to the daily morning checklist before the pool is opened.
Steven Getzoff is a senior litigation partner with the New York ALFA firm Lester Schwab Katz & Dwyer. He has been at the forefront of this issue in Washington, as well as other aquatic issues, including the Virginia Graeme Baker Pool and Spa Safety Act. His areas of practice include aquatic safety, product and premises liability, and CPSC and ADA compliance.
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