Operators now have more answers regarding the Americans with Disabilities Act compliance requirements.
However, questions remain, and Congress still could take action.
Revised standards for swimming pools and spas were issued May 24, days after the Department of Justice announced that it would extend the deadline for compliance with ADA to Jan. 31, 2013. Guidelines are presented in a technical assistance document and FAQ(available online), and the most significant changes make allowances for portable lifts.
“We’re pleased to see the clarity,” said Jennifer Hatfield, director of government affairs for the Association of Pool & Spa Professionals.
While industry experts appreciate the new guidance’s increased flexibility, some are still hoping for more details on what is meant by “readily achievable.” In the new documents, DOJ defines readily achievable as being “based on factors such as the nature and cost of the needed action; all the financial, staff and other resources available to the business and any parent entity; and the impact on the operation of the site, including legitimate safety requirements that are necessary for safe operation.”
But no examples or scenarios are provided, noted attorney Minh Vu, with Seyfarth Shaw, LLP.
“ ... Is it ever readily achievable for a business in bankruptcy to buy a new lift? If there is not enough pool deck space to comply with lift space requirements, is a lift still considered ‘readily achievable?’ Because there is no guidance and no clear answers, businesses can never be certain that their position that a lift is not readily achievable will prevail if they are sued,” added Vu, who represents the hotel and lodging industry and has served as the American Hotel & Lodging Association ’s outside counsel on Title III of the ADA since 2006.
Concerns and confusion about accessibility requirements had been growing since January, when the DOJ issued an interpretation of standards that effectively required fixed pool lifts for Title III facilities (including hotels, motels, nonprofits, swim clubs and other such facilities). It also prohibited sharing of accessibility equipment between Title II (municipal) facilities.
The DOJ now says that for Title III facilities, portable lifts purchased before March 15, 2012, are allowed, if kept in position for use at the pool and operational during all times that the pool is open to guests. The DOJ states that it will not be enforcing the fixed lift requirement for those operators; however, “generally, lifts purchased after March 15, 2012 [the original compliance deadline] must be fixed if it is readily achievable to do so.”
For Title II facilities (municipal pools) DOJ states that not every pool in an organization has to be accessible. However, if there’s only one pool, the entity must ensure that the aquatics program is accessible.
“While the DOJ expresses a preference for having a fixed lift at each body of water, they also seem to have done a reality check and determined that it may not be possible ... to meet that requirement,” said Margaret McGrath, vice president of marketing at S.R.Smith.
Meanwhile, two congressional bills are still pending, which could impact accessibility requirements if passed. And the U.S. House of Representatives has passed an amendment to the fiscal year 2013 Commerce, Justice and Science Appropriations Act. If it becomes law, the amendment will prohibit DOJ from using any funds to implement the mandate requiring a permanent pool lift under the ADA.
The amendment was brought forth on April 26 by House Republican Conference Secretary John R. Carter (Texas-31) and Reps. Alan Nunnelee (R-Miss.) and Jeff Flake (R-Ariz.).
Earlier this spring, Congressman Mick Mulvaney (R-S.C.) introduced the bipartisan “Pool Safety and Accessibility for Everyone (Pool SAFE) Act,” to require a one-year extension for compliance with the ADA pool-lift requirement. It also allows portable lifts and prohibits lawsuits against facilities for violations of “revised regulations for Titles II [municipal] and III [including hotels, motels nonprofits, swim clubs and other such facilities] of the [ADA]” between March 15, 2012, and one year from the enactment date.
Sen. Jim DeMint (R-S.C.) proposed bill S. 2186 with co-sponsors Lindsey Graham (R-S.C.) and Roy Blunt (R-Mo.). If passed, it would prohibit federal government officials from enforcing the ADA with respect to public pools and spas. With elections this fall, there’s not much time for Congress to pass new legislation, but Vu noted that the Appropriations Act including the Carter Amendment will go to conference in the Senate late this summer.