DOJ Takes Hard Line on ADA Pool Lift Guidance - 2/01/2012
After months of pressure from AH&LA, the Department of Justice (DOJ) yesterday issued a burdensome interpretation of when and how lifts need to be installed at swimming pools under the Americans with Disabilities Act. Although the DOJ did not specifically address spas, the principles set forth in the DOJ guidance could apply to spas as well.
DOJ has determined that lifts need to be available at each pool at all times when a pool is open to the public. In addition, only "fixed" lifts are acceptable unless a hotel can demonstrate that installing such a lift is not readily achievable. In that case, a portable lift would be allowed as long as the lift is securely in place during all operating hours. In the context of discussing pools owned by state and local governments, DOJ stated that sharing lifts between two pools is not allowed unless the entity can show an "undue burden."
In discussing the factors to be considered in the highly-fact dependent "readily achievable" analysis, DOJ failed to recognize "legitimate safety requirements" as a factor even though it is in its own regulations.
AH&LA is greatly disappointed at this interpretation which will cost the lodging industry additional millions in compliance obligations and comes less than two months before the March 15 compliance date.
AH&LA is considering next steps on how to respond to this unfortunate action. AH&LA originally expressed opposition to a universal pool and spa mandate in comments to the DOJ during the 2008 comment cycle and in the past year has filed several letters requesting a reasonable interpretation of this provision.
Points from yesterday's DOJ guidance include:
AH&LA has provided numerous tools for ADA compliance on our website at www.ahla.com. Visit our website for webinars, advisories, articles, educational material and other tools.
The below information was pulled from the American Hotel & Lodging Association's website. The direct link can be found here.
Tell Congress You Oppose DOJ Position - 2/10/2012
Hoteliers need to share how devastating this ruling is for business
The American Hotel & Lodging Association Wednesday afternoon met with the Department of Justice (DOJ) to discuss our industry's concerns over the January 31, 2012 guidance on lifts for pools and spas.
DOJ reiterated its harsh and unyielding interpretation that all pools and nearly all spas need to have at least one means of entry by March 15, 2012, and in most cases this will be a costly permanently fixed lift. DOJ officials refused to consider AH&LA's concerns that the ADA rules are vague and overbroad - leading to great confusion. Nor did the DOJ consider our industry's concern regarding the possibility that a permanent lift that is not being used might pose a safety concern for children and other guests or the inability to obtain and property install lifts by the March 15, 2012 deadline.
Contact Congress today and express your opposition to this hard line approach taken by DOJ. Key questions answered by DOJ Wednesday include:
- All lifts must be fixed or attached to a deck at all times the pool is open to guests. A portable lift is not acceptable unless it can also be fixed to the deck with clamps, screws, or bolts.
- Properties that have already purchased portable lifts will need to find a way to secure the lift to the deck or purchase a new lift that can be fixed.
- DOJ expects lifts at all pools and most spas to be in place by March 15 or when the pool/spa is opened.
- Lifts cannot be shared between pools.
- A lift must be installed if it is readily achievable.
- External factors such as insurance rates, child safety, hiring additional staff to monitor safe usage and/or maintain the operation of the lift cannot be factors in determining excessive cost.
AH&LA is working with our ADA Counsel to assess a legal response to this hard line and disappointing approach from DOJ. Additional information will be forthcoming. To view a detailed account of yesterday's meeting, visit AH&LA's website (member login required).
From Lodging Kit:
For more information regarding tax incentives to businesses who incur expenses in an effort to comply with ADA regulations, click here to visit the ADA's website.
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