Mr. Barth

ADA Compliance

New ADA Standards Affecting Swimming Pools

By Stephen Barth, Founder, HospitalityLawyer.com

Co-authored by Vinh Nguyen, J.D., M.B.A. & Diego Demaya, J.D., Southwest ADA Center

What if someone told you that by spending an estimated $5,000 (sometimes a little less, sometimes a little more), you could show exceptional appreciation to the men and women that became disabled while protecting our rights during a war?

Or what if you had a child that was disabled but loved to swim. Would you want them to be able to enjoy all of the amenities that a place of public accommodation has to offer, or would you want them to have to sit on the side of the pool while all of the other children were playing in it?

Perhaps it is time to take a different perspective on the ADA.

It is only natural that business operators resist spending time and money on items that do not have a perceived ROI. After all, that is why they are in business. It is also natural for all businesses to want clear criteria in order to comply with legal requirements. After all, it is difficult to hit a moving target.

Isn't it just as natural for all members of the traveling public to want to enjoy all of the amenities a place of public accommodation has to offer? After all, everyone is paying to stay and part of the value proposition are the amenities.

Isn't it just as natural for a person with disabilities to be part of the traveling public? People with disabilities or prosthetic devices, are just that, people with the same reasons and needs to travel as everyone else.

People that do not ask for a discount, they are just seeking access to the value for which they are paying.

The ADA tries to balance these perspectives. Is it perfect? Of course it's not. It is nearly impossible to draft a law (or a contract for that matter) that addresses every eventuality that might arise. But the ADA, with its "readily achievable" standard, tries very hard to balance these perspectives.

Let's take a closer a look at what the fuss is about.

The 2010 ADA Standards for Accessible Design became effective on March 15, 2012. The U.S. Department of Justice (DOJ), which enforces the Americans with Disabilities Act (ADA), implemented these new standards after a six-year process to update their ADA regulations. The DOJ had sought and received extensive public comment as part of the process. At the Southwest ADA Center alone, we have received a barrage of calls from hotel and motel owners about how the new ADA standards affect their swimming pools, wading pools, and spas (collectively referred to as "pools"). Numerous vendors have approached them insisting that they must install pool lifts by this date so that their pools are accessible to patrons with disabilities who may need them. The owners are concerned due to budget constraints and want clarification on their obligations.

Due to significant feedback based on inquiries from pool operators and lobbying from hospitality industry groups, the U.S. Department of Justice (DOJ) has decided to extend the compliance date for existing pools to May 15, 2012. The DOJ learned that there was much misunderstanding among pool operators about their obligations under the new Standards and that it was in the best interest of the public to give them more time to correct these misunderstandings and comply with the law. The DOJ is also seeking comment from the public on whether an additional six-month extension would be appropriate and necessary.

So what is the heart of the issue? The DOJ expects hotels and motels to modify existing pools and spas to comply with the new standards to the extent that is readily achievable. For swimming pools that are less than 300 linear feet, at least one means of accessible entry is required. For pools that are longer than 300 feet, at least two means must be provided. For all swimming pools, at least one accessible means of entry must be either a sloped entry or through a pool lift. Wading pools should have a sloped entrance while spas should provide entry through an ADA compliant lift, transfer wall, or transfer system.

Almost every inquiry about barrier removal for pools and spas have been about using pool lifts instead of other available means of entry. In reviewing the available pool lifts that are out on the market, they seem to range from $3000 to $8,000, without factoring in the cost of installation for a fixed lift. Smaller lodging owners may have difficulty meeting that cost in a weaker economy. Remember that the ADA requires owners to remove barriers only to the extent that is readily achievable. Readily achievable is defined as being "easily accomplishable and able to be carried out without much difficulty or expense," considering the nature and cost of the barrier removal and the overall resources of the hospitality entity. Determining what is readily achievable will depend on the business and sometimes from one year to the next due to changing economic conditions. So for hospitality entities that have the resources to make the necessary modifications, yes; their pools and spas must be up to code. However, there is no mathematical formula to determine whether a barrier removal is considered readily achievable. This decision must be made on a case-by-case basis after a thorough consideration of the listed factors. It is important to note that the " readily achievable " standard is not new and has been around since the original law was enacted during the elder Bush term and is considered to be business friendly, as it only requires the accommodation, if, as and when the business can afford it.

Legitimate safety issues may also be considered in determining whether a barrier removal is readily achievable. Pool operators were concerned about the safety of pool lifts with respect to children. However, these considerations must be based on actual risks and can not be based on speculation or unsubstantiated generalizations. Pool lifts have been available for 20 years. The federal government noted that it was not aware of any incidents of injury or accidents involving pool lifts and is also not aware of any evidence that shows that lifts are any less safe than other components of a pool when they are used inappropriately. The installation of the lift itself does not change the burden to the business. It is important to remember that Hotel operators are not the insurers of their guest safety; they have a duty to provide reasonable care. And that duty existed prior to the installation of the accommodation and will exist afterward with the same defenses, such as contributory negligence by the guest or the guest's parents.

Many hotel operators have asked whether they could use a portable lift to satisfy their lift obligations. The ADA standards for lifts presume that they are fixed installations with specifications on where they are to be placed, where the seat should be located, and how deep the seat should go into the water. The lift should be affixed in some manner to the pool deck or apron. The DOJ will allow the use of a portable lift if the installation of a fixed one is not readily achievable. The pool operator should factor in the staff and financial resources needed to keep the pool equipment available and in working condition. The DOJ expects that the pool lift remain in place and be operational during all times that the pool is open to guests.

Hospitality entities that do not have the resources to modify their pools and spas up to the new standards will not have to do so for now. However, what is not "readily achievable" today may be "readily achievable" in the future. The DOJ considers barrier removal to be an ongoing obligation and expects businesses to make improvements to facilities over time. Hospitality entities that cannot afford the pool lift or other means of entry now must plan for its purchase and budget accordingly for the future. Tax incentives are available for businesses to improve the accessibility of their facilities. In the meantime, these entities must also explore other means to provide access to patrons with disabilities such as having staff provide entry and exit assistance if appropriate and permissible by the customer.

Listed below are several resources to assist you in making the best possible choice for your business and your customers, the traveling public.

Additional Resources

  • Accessible Pools Means of Entry and Exit - The DOJ published this technical assistance document on January 31, 2012 in response to inquiries from pool owners and operators.

  • Accessible Swimming Pools and Spas - This guide is intended to help designers and operators in using the accessibility guidelines for swimming pools, wading pools, and spas.

  • Letter to the Asian American Hotel Owners Association - regarding accessible entry and exit for swimming pools and spas.

  • Letter to the American Hotel and Lodging Association - regarding accessible entry and exit for swimming pools and spas.

  • Expanding Your Market - Tax Incentives for Business - Tax credits are available for small businesses and deductions are available for businesses of any size to help improve the accessibility of their facilities and services.

  • Accessible Customer Service Practices for Hotel and Lodging Guests with Disabilities - Good customer service practices will bring repeat business from guests with disabilities, older travelers, and friends and families that accompany this large and growing market.

  • ADA Update: A Primer for Small Business - An illustrated guide to help small businesses understand the new and updated requirements of the revised ADA regulations. (updated 3/16/11)

  • Updated Readily Achievable Barrier Removal Checklist for Existing Facilities - A prioritized and updated checklist consistent with the 2010 Standards.

About the Southwest ADA Center

The Southwest ADA Center is one of ten regional centers that promote compliance with the Americans with Disabilities Act (ADA) through technical assistance, training, and materials dissemination. If you have a question about the ADA or serving patrons with disabilities, you may email swdbtac@ilru.org or call your regional ADA Center at 1-800-949-4232. The information provided is intended solely as informal guidance and is neither a determination of your legal rights or responsibilities under the Americans with Disabilities Act (ADA), nor binding on any agency with enforcement responsibility under the ADA and other disability-related laws.

Stephen Barth, author of Hospitality Law and coauthor of Restaurant Law Basics, is an attorney, the founder of HospitalityLawyer.com, the annual Hospitality Law Conference series, and the Global Congress on Legal, Safety, and Security Solutions in Travel. As a professor at the Conrad N. Hilton College of Hotel and Restaurant Management at the University of Houston, he teaches courses in hospitality law and leadership. He has over twenty years of experience in hospitality operations, including line positions, management, and ownership. Professor Barth is a founding member of the Hospitality Industry Bar Association. He is a member of the State Bar of Texas. He is also a mediator and a strong proponent for alternative dispute resolution. Mr. Barth can be contacted at 713-963-8800 or SBarth@HospitalityLawyer.com Extended Bio...

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