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 dependant “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:
For state and local facilities, sharing accessible equipment (e.g., pool lifts) between pools is not permitted unless it would be an “undue burden” for an entity to provide one lift per pool. Although not explicitly addressed, this likely means that lifts also cannot be shared between a pool and a spa . While DOJ does not specifically address the lift sharing question with respect to public accommodations, there is no reason to believe that the DOJ’s position would be any different for a public accommodations facility.
Pool lifts must be “fixed” unless having a fixed lift is not readily achievable. If it is not readily achievable to have a fixed lift, then a portable one can be used if it meets the 2010 Standards requirements.
Pool lifts must be in position and fully operational during pool hours.
Pool lift batteries must be fully charged and ready for use. The public accommodation must ensure that there is a charged battery available at all times when the pool is open.
DOJ’s explanation of what is “readily achievable” makes clear that no lodging facility will be able to determine whether it can rely on this defense. DOJ states: “Determining what is readily achievable will vary from business to business and sometimes from one year to the next” and goes on to list some, but not all of the regulatory factors to be considered. DOJ failed to mention that “legitimate safety considerations” are to be considered in the “readily achievable” analysis.