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Ms. Pohlid

ADA Compliance

Making Your Guest Rooms ADA Compliant

By Kathleen Pohlid, Founder and Managing Member, Pohlid, PLLC

Now is the time for hotel and lodging facilities to evaluate their facilities to ensure guest rooms are compliant with the Americans with Disabilities Act. There are two important reasons to do so:

  • First, facilities that want to qualify for safe harbor exceptions to the new 2010 ADA standards must ensure compliance with the 1991 standards before March 15, 2012. Otherwise, the 2010 standards apply.

  • Second, recent Department of Justice action indicates greater scrutiny on hotel accessibility. Facilities should be alert to these enforcement actions and ensure their guest rooms are ADA compliant, otherwise they may face litigation by DOJ or individuals claiming denial of access.

Moreover, the requirements for ADA compliant guest rooms have changed and may affect planned alterations or construction.

Compliance Options

Last year, DOJ issued revised ADA regulations and new 2010 ADA Standards for Accessible Design. The 2010 standards include additional design and construction requirements for disability access and some revisions to the "current" or "old" 1991 standards. The revised regulations go into effect on March 15, 2011 while the "new" 2010 standards go into effect on March 15, 2012. Both the revised regulations and the new 2010 standards are available through the DOJ website at www.ada.gov.

Until the 2010 standards go into effect on March 15, 2012, hotels have two options for ADA compliance with respect to existing and new facilities: either the 1991 standards or the 2010 standards. On or after March 15, 2012, the 2010 standards must be used.

In general, if the date of the last application for a building permit or permit extension (or the start date of the physical construction where no permits are require) is on or after September 15, 2010 and before March 15, 2012, the facility must comply with either the 1991 standards or the 2010 standards. If the permitting date or the start of actual construction is on or after March 15, 2012, the 2010 standards apply. If the permit or permit extension application date was prior to September 15, 2010, or if no permit applied and the start of physical construction or alteration occurred prior to September 15, 2010, the facility must comply with the 1991 standards.

Safe Harbor for Existing Facilities

Existing facilities that comply with the 1991 standards may qualify for the safe harbor provisions of the revised ADA regulations. The "safe harbor" provision promotes continued "good faith" compliance of those hotels that have already undergone construction to comply fully with the 1991 standards.

The safe harbor exception applies on an "element by element" basis. Those elements that comply fully with the 1991 standards will be covered under the safe harbor provision beyond March 15, 2012, until they undergo alterations. The safe harbor provision does not apply to those elements in existing facilities that are subject to supplemental requirements or elements scoped or addressed for the first time in the 2010 standards. Elements for which there are neither technical nor scoping specifications in the 1991 standards must comply with the 2010 standards.

2010 Changes Affecting Accessible Rooms

The 2010 standards are similar to the "old" or "current" standards but not identical, and in some cases, require a greater degree of accessibility. Portable visible alarms, for example, will not be allowed in guest rooms requiring communication features, and new requirements for toilet and bathing facilities will result in larger bathrooms.

Additionally, the revised DOJ regulations impose new requirements for places of lodging with respect to reservations of accessible rooms.

Facilities must implement the following modifications by March 15, 2012:

  • Modify their policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms;
  • Identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs;
  • Ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type;
  • Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and
  • Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.

The revised regulations also impose new communication requirements for accessible rooms. Most hotel guest rooms utilize an automated-attendant system such as voicemail messaging systems for receiving and directing incoming telephone calls. Effective March 15, 2012, those facilities must also provide effective real-time communication with individuals using auxiliary aids and services, including text telephones (TTYs). Facilities must also make TTYs or other telecommunications products and systems for use by individuals who are deaf or hard of hearing, or who have speech impairments.

DOJ Scrutiny of Hotel Facilities

Recent action by the DOJ may portend greater potential for liability to those hotel facilities that do not have ADA compliant guest accommodations. In 2010, after completing a three-month survey of 13 hotels within the Hilton Worldwide, Inc., DOJ concluded that persons with disabilities were not able to reliably obtain accessible rooms through the hotel chain's reservation system.

Specifically, DOJ alleged the hotel failed to provide the following accessible elements:

  • The required number of accessible rooms;
  • Accessible rooms dispersed among the various categories of available accommodations;
  • The ability for individuals with disabilities to reserve accessible rooms through the hotel's on-line or telephone central reservations system; and
  • Accessible sleeping accommodations as reserved through the on-line or telephone reservations system.

As a result of DOJ's allegations, the hotel chain entered into a consent decree agreeing to review and certify ADA compliance for 900 of its hotels. This action marks the first time DOJ has required a hotel chain to conduct such a survey and certification of compliance under a consent decree. Additionally, this is the first case where DOJ has required a hotel facility to provide an online reservations system to enable persons with disabilities to reserve rooms with specific accessible amenities. As noted above, the revised regulations require this feature be implemented by March 15, 2012.

Although the Hilton consent decree was reached following DOJ enforcement, hotels should be aware that the ADA provides for enforcement by private litigants. Many disability advocacy groups are aware of this consent decree and are likely to be vigilant with respect to facilities that do not provide accessibility as required by the ADA.

Tips for Surveying Guest Rooms

Hotel facilities should not merely assume the past practice of providing designated "handicap rooms" means that they are ADA compliant. In many cases, guest rooms have undergone renovations within the past 20 years since the ADA was enacted. Those renovations may have made elements within the rooms inaccessible. Since ADA compliance is measured in fractions of inches, surveying for accessibility is crucial. Additionally, once a room is designated as "handicapped" or "accessible," the actual accessibility of each element may be overlooked.

Hotel facilities should ensure their survey of accessible room elements includes the following:

  • An accurate and reliable reservation system to provide persons with disabilities the ability to reserve rooms with accessible amenities;
  • A sufficient number of accessible rooms, including rooms with communication features (see Tables 224.2 and 224.4 below);
  • Amenities that are provided in inaccessible guest rooms must also be provided in accessible guest rooms (for example, if vanity countertop space is provided in inaccessible guest room bathrooms, then comparable vanity spaces must be provided in accessible guest rooms);
  • Dispersion of accessible rooms among the various classes of sleeping rooms accommodations (Factors to be considered include room size, bed size, cost, view, fixtures such as hot tubs and spas, smoking/nonsmoking, and the number of rooms provided);
  • Accessible sleeping rooms with roll-in showers as required by the standards;
  • Accessible fire alarm or other emergency warning system for individuals who are deaf or hard of hearing;
  • Accessible pathways, approaches to elements and turning space for wheelchairs;

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  • If carpeting is provided, ensure it is low-pile, tightly woven and securely attached;
  • Handles and dispensers that can be operated easily with one hand;
  • Tub and shower seats that can be securely attached;
  • Accessible dispensers and operating controls within reach ranges;
  • Accessible light switches, thermostats, drapery wands and door security hardware; and

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  • Accessible sinks and toilets with grab bars.

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    Hotel facilities should take action now to survey their guest rooms for ADA compliance with the 1991 standards under the safe harbor and begin to implement the new 2010 requirements for reservation systems and communication features. These actions will increase their marketability to persons with disabilities and protect them against ADA liability.

Kathleen Pohlid is the founder and managing member of the law firm of Pohlid, PLLC in the Nashville, Tennessee area. She advises business clients in matters including employment, occupational safety and health, Americans with Disabilities Act (accommodation & discrimination) and regulatory compliance. Her goal is to enable clients to comply with the myriad of state and federal laws to succeed in their business, mindful of the challenges facing businesses and the importance of cost effectiveness. She has advised and represented businesses in a variety of industries including restaurants, hotels, and other entities in the tourism and hospitality industries. She has over 20 years of combined federal government and private sector experience in employment law and litigation. She holds an AV® rating from Martindale-Hubbell (highest for professional competency and ethics), a B.S. degree from the U.S. Naval Academy and a J.D. from Samford University. Ms. Pohlid can be contacted at 615-369-0810 or kpohlid@pohlid.com Please visit http://www.pohlid.com for more information. Extended Bio...

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