HERE’S WHAT YOU NEED TO READ!
Starting March 15, 2012, hotels, inns, and other public accommodations with pools, spas, or wading pools must make them accessible, and everyone in the lodging industry is trying to make sense of all of the rumors, misinformation, and aggressive sales pitches from pool lift salespeople, and conflicting assumptions to comprehend exactly what this new requirement means to their operations.
In talking with CH&LA members, we have found that very few lodging operators have a comprehensive, accurate understanding of what they need to do, and this article is intended to provide the very latest information available on this topic.
When the “Americans with Disabilities Act Accessibility Guidelines (the 1991 Standards, which apply until 3/15/2012) were adopted, the U. S. Department of Justice (DOJ) did not include any standards dealing specifically with recreational facilities. The new accessibility-related building standards under the Americans with Disabilities Act (ADA) are commonly referred to as the 2010 Standards include these standards.
Now, among a great many other changes, they now provide scoping (i.e., “how many”) and technical requirements for a wide range of recreational facilities: amusement rides, recreational boating facilities, exercise machines and equipment, fishing piers and platforms, golf and miniature golf facilities, play areas, saunas and steam rooms, swimming pools, wading pools, and spas, and shooting facilities and firing positions.
View the 2010 Standards. See Sections 242 and 1009 regarding pools, spas, and wading pools. The terms used in the analysis below (e.g., transfer systems and walls, sloped entries, and pool stairs) are defined or otherwise explained Sections 242 and 1009 of the 2010 Standards.
The 2010 Standards deal with a number of recreational facilities other than pools, wading pools, and spas, and lodging operators need to heed the 3/15/2012 compliance date for those as well although those issues are not addressed in this article.
Making Swimming Pools Accessible – Generally
- The 2010 Standards require that at least two accessible means of entry shall be provided for swimming pools. Acceptable accessible means of entry are swimming pool lifts, sloped entries, transfer walls, transfer systems, and pool stairs. At least one of the required two means of entry must be a pool lift or a sloped entry.
DOJ recommends the following: “Where more than one means of access is provided into the water, it is recommended that the means be different. Providing different means of access will better serve the varying needs of people with disabilities in getting into and out of a swimming pool. It is also recommended that where two or more means of access are provided, they not be provided in the same location in the pool. Different locations will provide increased options for entry and exit, especially in larger pools.
- There is an exception to the requirement for two accessible means of entry: IF the swimming pool has less than 300 linear feet of swimming pool wall, no more than one accessible means of entry shall be required provided that the accessible means of entry is a swimming pool lift or sloped entry. In calculating the length of your pool wall, note that pool walls at diving areas and areas along pool walls where there is no pool entry because of landscaping or adjacent structures are to be included when determining the number of accessible means of entry required.
- Wave action pools, leisure rivers, sand bottom pools, and other pools where user access is limited to one area shall not be required to provide more than one accessible means of entry provided that the accessible means of entry is a swimming pool lift, a sloped, or a transfer. Catch pools shall not be required to provide an accessible means of entry provided that the catch pool edge is on an accessible route.
Pool Lifts
The specific technical provisions of the 2010 Standards governing swimming pool lifts are set out in Section 1009.2 of the 2010 Standards. DOJ explains:
- “There are a variety of seats available on pool lifts ranging from sling seats to those that are preformed or molded. Pool lift seats with backs will enable a larger population of persons with disabilities to use the lift. Pool lift seats that consist of materials that resist corrosion and provide a firm base to transfer will be usable by a wider range of people with disabilities. Additional options such as armrests, head rests, seat belts, and leg support will enhance accessibility and better accommodate people with a wide range of disabilities.”
- Hence, as long as a pool lift meets the standards pertaining to pool lift location, seat location, clear deck space, seat height and width, submerged depth, and lifting capacity, a lodging operator is free to use whatever type of lift he/she wishes.
- HOWEVER, that is not the case in California! Since 2004, the California Building Code (CBC) has stated that IF a pool lift is used, it must meet the following specifications, some of which are over and above the ADA standards:
CBC Section 1104B.4.3.4. Swimming pool deck areas shall be accessible, and a mechanism to assist persons with disabilities in gaining entry into the pool and in exiting from the pool shall be provided. Such a mechanism may consist of a swimming pool lift device that meets all of the following criteria:
4.1. Have a seat that meets all of the following:
* 4.1.1. The seat shall be rigid;
* 4.1.2. The seat shall be not less than 17 inches (423 mm) and not more than 19 inches (483 mm), inclusive of any cushioned surface that might be provided, above the pool deck;
* 4.1.3. The seat shall have two armrests. The armrest on the side of the seat by which access is gained shall be either removable or fold clear of the seat;
* 4.1.4. The seat shall have a back support that is at least 12 inches (305 mm) tall;
* 4.1.5. The seat shall have an occupant restraint for use by the occupant of the seat, and the restraint shall meet the standards for operable controls in compliance with Section 1117B.6, Items 1 through 4.
4.2. Be capable of unassisted operation from both the deck and water levels.
4.3. Be stable and not permit unintended movement when a person is getting into or out of the seat.
4.4. Be designed to have a live-load capacity of not less than 300 pounds (137 kg).
4.5. Be positioned so that, if the pool has water of different depths, it will place the operator into water that is at least 3 feet (914 mm) deep.
4.6. Lower the operator at least 18 inches (457 mm) below the surface of the water.
This means that all pool lifts used in California lodging establishments have to meet both the 2010 Standards under the ADA and the CBC. Lodging operators have to compare the ADA and CBC provisions and use whichever is the most stringent on each individual point.
Sloped Entries
A sloped entry allows a person using a wheelchair to enter a pool by rolling the wheelchair down a ramp into the water.
Obviously, not all wheelchairs are suitable for this purpose.
As DOJ states: “Personal wheelchairs and mobility devices may not be appropriate for submerging in water. Some may have batteries, motors, and electrical systems that when submerged in water may cause damage to the personal mobility device or wheelchair or may contaminate the pool water. Providing an aquatic wheelchair made of non-corrosive materials and designed for access into the water will protect the water from contamination and avoid damage to personal wheelchairs or other mobility aids.”
The specifications in the 2010 Standards for sloped entries are set out in Section 1009.3.
Wading Pools: At least one accessible means of entry shall be provided for wading pools. Accessible means of entry must be a sloped entry that goes to the deepest part of the pool.
Spas: At least one accessible means of entry shall be provided for spas. Accessible means of entry shall be either a swimming pool lift, a transfer wall, or a transfer system. Exception: Where spas are provided in a cluster, no more than 5 percent, but no fewer than one, spa in each cluster shall be required to comply with 242.4.
When Must You Comply? This is a critical and complicated issue. If one were to build a new hotel after March 15, 2012, the hotel’s swimming pools, spas, and wading pools would have to comply with the 2010 Standards (plus, of course, whatever might be in the CBC that is more stringent). The same would be true if one where renovating/altering a pool or spa after 3/15/2012 in a hotel or inn that was constructed prior to that date.
If, however, one is dealing with an existing hotel and no pool/spa alterations are to be undertaken, the lodging operator must still comply with these 2010 Standards to the extent the operator can do so in a “readily achievable” manner. The ADA’s readily achievable barrier removal obligation is one of its most complex and ambiguous provisions, even though its requirements are set forth in relatively simple language:
- A public accommodation shall remove architectural barriers in existing facilities, including communication barriers that are structural in nature, where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.
- The term “readily achievable” is defined in Section 36.104, as follows:
Readily achievablemeans easily accomplishable and able to be carried out without much difficulty or expense. In determining whether an action is readily achievable factors to be considered include—
(1) The nature and cost of the action needed under this part [i.e., to provide accessibility];
(2) The overall financial resources of the site or sites involved in the action; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements that are necessary for safe operation, including crime prevention measures; or the impact otherwise of the action on the operation of the site;
(3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;
(4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and
(5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.
The obvious objective of this standard is to recognize that what might be affordable or doable by a huge hotel company might well not be affordable or doable—either currently or, perhaps, ever—by a small independent hotel. Each case will be analyzed on its own facts.
Therefore, if March 15, 2012, comes and you have no lift or sloped entry for your pool, your are not necessarily in violation of the 2010 Standards—although you might be in violation of the CBC’s pool accessibility requirements—as long as you provide the required level of accessibility as soon as feasible under the readily achievable barrier removal obligation.
Questions and Answers from the DOJ
Although the 2010 Standards are relatively clear, they don’t cover all of the issues that hotels face as the March 15 deadline approaches. The following questions were submitted by the American Hotel & Lodging Association (AH&LA) to DOJ last October:
Most hotels have swimming pools and spas that are unattended. Our members are very concerned that leaving pool lifts unsecured, unsupervised, and ready to use at all times creates a potentially significant safety hazard to their guests. For example, children could injure themselves if they climb on or jump off of the lift, or try to operate the lift. Accordingly, our members want to know whether a pool lift must always be positioned in place and ready to use whenever a facility’s pool is open to guests, or whether any of the follow alternatives would be lawful under the ADA:
1. The hotel brings the lift out and positions it upon request. If this is an acceptable alternative to leaving the lift in place at all times, how quickly does the lift have to be brought out to comply with ADA requirements?
2. At check-in, the hotel asks or otherwise notifies all guests if they need to use the pool lift. If a guest answers in the affirmative, the hotel places the lift in position for the duration of the guests’ stay.
3. Must a pool lift be permanently affixed to the pool or spa deck or can it be portable as long as it can be securely placed into position for use? The 2010 ADA Standards do not appear to contain a requirement that a pool lift be permanently attached. Some of our members close their outdoor pools and/or spas in the winter months and it is important for them to be able to store the lifts to protect them from harsh weather conditions.
The following questions pertain to existing pools and spas.
1. If an existing hotel has both a swimming pool and a spa, may the hotel have a single pool lift that can be moved between the two pools as needed upon request by a guest with a disability? If so, how quickly does the hotel have to place the lift in position to comply with ADA requirements?
2. Similarly, if an existing hotel has two or more swimming pools in the same location, may the facility have a single pool lift for both pools and move the lift around as needed upon request by a guest with a disability? If so, how quickly does the hotel have to place the lift in position to comply with ADA requirements?
3. If an existing facility has one large (300 or more linear feet) swimming pool, does the facility satisfy the “readily achievable” barrier removal standard by having one pool lift or must another means of accessible entry be provided?
After months of pressure from AH&LA, the DOJ issued an interpretation of when and how lifts need to be installed at swimming pools and although they did not specifically address spas, the principles set forth in the DOJ guidance could apply to spas as well.
What you need to know:
- Lifts need to be available and in position at each pool at all times when a pool is open to the public.
- Only ‘fixed’ lifts are acceptable, unless a hotel can demonstrate that installing such a lift is not “readily achievable”.
- For pools owned by state and local governments, sharing lifts between two pools in not allowed unless the entity can show an “undue burden”.
- Pool lift batteries mist be fully charged and ready for use at all times the pool is open.
- 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 and the lift is securely in plane during all operating hours.
Opposition to these standards was originally expressed to a universal pool and spa mandate in comments to the DOJ during the 2008 comment cycle, and several letters in the past year requiring a reasonable interpretation of this provision were filed by AH&LA.
Regardless, California Has Its Own Requirements for Recreational Facilities
The ADA pool-accessibility standards analyzed above are “new” only if you are in a state other than California. The California Building Code has required that pools, spas, and wading pools be accessible to people with disabilities since July 1982! Unfortunately, many California lodging operators either don’t know this or don’t care, and a large number of them have been sued for this violation of California law and paid large sums of money.
In addition, the CBC covers many recreation- and sport-related facilities that are not covered in the 2010 Standards:
Section 1104B.4.3 Participation areas. Participation areas shall be accessible to persons with disabilities, including the following listed and similar activity areas:
1. Tennis, racquetball and handball courts.
2. Gymnasium floor areas and general exercise rooms.
3. Basketball, volleyball and badminton courts, and bowling lanes.
4. Swimming pool deck areas shall be accessible, and a mechanism to assist persons with disabilities in gaining entry into the pool and in exiting from the pool shall be provided.
5. Athletic team rooms and facilities, playing fields and running tracks.
In addition, the CBC covers sanitary and locker rooms, and club rooms, among other facilities. These obligations have been in effect since 1982, and many hotels and inns are still not in compliance.
Come March 15, members need to have in mind exactly what they are required to do with respect to accessible pools and spas, and when they need to comply. Now is the time to worry about this—not March 16. By then, the plaintiffs’ lawyers will have their sights set on you and your property.
Members with questions and in need of more detailed assistance should contact CH&LA’s Member Legal Advisor, Jim Abrams, at 916-425-8476 or jim@calodging.com.
Other Resources:
Pool Lift Issue Still Unfixed - DOJ clarification on ADA regulations muddies the water even more.
