Jan 15, 2013
Author: Donald R. Brown
On January 31, 2013, the deadline for lodging facilities and other places of public accommodation to comply with new accessibility regulations for pools and spas takes effect. The regulations were issued by the Department of Justice under the Americans with Disabilities Act ("ADA") and are set forth in Sections 242 and 1009 of the 2010 Standards for Accessible Design. In general, the regulations require that each pool and spa provide one or more designated means of access for persons with mobility impairments. These accessibility requirements apply to all pools and spas that are constructed or "altered" (discussed below) after January 31, 2013. They also apply to all existing pools and spas, whether or not they are altered, insofar as compliance is "readily achievable" (also discussed below).
Means of accessThe regulations specify the following means for entry and exit:
Which types of pools and spas require which means of accessEvery pool and spa on a property must be accessible to persons with mobility impairments, but the specific means of access depends on the type of pool or spa:
What is required for each method of accessEach means of access must satisfy detailed specifications set forth in Section 1009 of the 2010 Standards for Accessible Design. The types of specifications (but not the specifications themselves) are as follows:
DOJ clarifications and interpretationThe Department of Justice ("DOJ") has issued interpretive guidelines, which are available here. The DOJ has also clarified certain ambiguities and open issues during question and answer sessions, some of which are discussed here. In addition, the DOJ has spoken informally with the American Hotel and Lodging Association and provided further information regarding its interpretation of certain open issues. Some positions and statements of note by the DOJ are:
The DOJ's interpretation of its own regulations is obviously important, both generally and in the event that it commences an investigation or undertakes an enforcement action. The DOJ's position is also important (but not necessarily conclusive) in the event that any private plaintiff or class of plaintiffs commences litigation to attempt to enforce these regulations.
What does "alteration" mean?Existing pools that are altered must meet each of these accessibility requirements. "Alteration" is loosely defined under the ADA as a change that "affects usability." Mere maintenance is not an alteration. Nor, in the case of a pool or spa, would changes to mechanical or electrical systems, such as filtration and chlorination, be an alteration. Rather, an alteration is likely to mean some kind of structural change to the pool or spa or adjacent surface area.
What does "readily achievable" mean?For existing pools and spas, each of these accessibility requirements applies only insofar as compliance is readily achievable. "Readily achievable" means "easily accomplishable and able to be carried out without much difficulty or expense." However, while easy to articulate, this standard is often difficult to apply, as it depends on many factors, including financial resources, the nature and cost of the accessibility measure, safety issues, and the number of employees. Moreover, an analysis of financial resources may take into account the resources of any parent corporation. In addition, an assessment of "readily achievable" is not frozen in time. A facility must continuously reassess its ability to comply with these regulations, and compliance must be implemented once it becomes readily achievable.
The DOJ has clarified a few points regarding readily achievable standard for these new regulations. For example, the financial resources of a franchisor that does not own or operate the site need not be considered when assessing the financial resources available to a franchisee. And, limitations on insurance coverage or an increase in insurance rates may not be considered when assessing whether compliance is readily achievable.
Finally, please note that some states have their own disability access laws and regulations.
If possible, you should seek legal guidance on all of these issues-and especially regarding whether full or partial compliance is readily achievable.
© 2014 Manatt, Phelps & Phillips, LLP. All rights reserved.