Government’s New Swimming Pool Rules Are ‘Harsh and Unyielding,’ Hotel Industry Says

February 28, 2012 - 1:07 PM

(CNSNews.com) - American hotel operators say President Obama's Justice Department is socking them with an "overly burdensome" interpretation of the Americans With Disabilities Act (ADA), by requiring hotels and other lodgings to make swimming pools and spas handicap-accessible.

That process must be under way by March 15 – less than two months after the Justice Department offered its “guidance” on the subject.

The American Hotel & Lodging Association, the industry trade group, is urging Congress to "restore reasonableness to the ADA."

Federal law requires existing buildings or facilities to remove physical barriers to disabled people if it is “readily achievable” to do so.  In 2010, the Justice Department updated that requirement to include “accessible means of entry and exit” for pools, spas and wading pools.

But the Justice Department did not spell out details of what “accessible means of entry and exit” would mean until the end of January.

Swimming pools ramps are okay, and so are swimming pool lifts, as long as they are permanently fixed to the pool deck. In most cases, portable lifts will not meet ADA requirements, Justice Department officials told the hotel industry at a meeting earlier this month. Larger pools are required to have two accessible means of entry, with at least one being a pool lift or sloped entry. Lifts cannot be shared between pools.

And when selecting equipment, the hotel or spa “should factor in the staff and financial resources needed to keep the pool equipment available and in working condition.”

A major concern for the hotel industry is the government’s inability to provide definitive answers to questions about when installing pool lifts or ramps is “readily achievable.”

“As we explained, while we understand your desire for definitive answers, such questions cannot be answered in the abstract,” an official with Justice Department’s Disability Rights Section wrote in a Feb. 21 letter to the hotel industry.

Determining whether the removal of a specific barrier is readily achievable “requires a case-by-case assessment that may vary from business to business and sometimes from one year to the next for the same business,” the Justice Department said. “The decision should be made by each public accommodation in consultation with its own legal advisors and others.”

If a hotel, for example, finds that it is not feasible to make all of the swimming pool modifications immediately, the Justice Department advises the hotel to "develop an implementation plan.”

"Such a plan, if appropriately designed and diligently executed, may well serve as evidence of a good faith effort to comply with the ADA's barrier removal requirements," the Justice Department said.

Expense and compliance aren’t the only worries: The hotel industry also complains that the Justice Department brushed aside its concerns that a permanent lift installed by the side of a hotel swimming pool “might pose a safety concern for children and other guests.”

Hotel operators worry that leaving a lift attached to the side of a swimming pool, for example, will open the hotel industry to costly lawsuits -- or force it to hire tens of thousands of employees who are assigned to the sole task of "lift watching.”

The Justice Department addressed that concern in its Feb. 21 letter to the American Hotel and Lodging Association, noting that pool lifts have been commercially available for over 20 years.

“While the (Access) Board recognizes that inappropriate use of pool lifts may result in accident or injury, the Board is not aware of any incidents of injury or accidents involving pool lifts. The Board is also not aware of any evidence that shows that pool lifts are any less safe than other components of a pool facility, such as other means of pool entry, when they are used inappropriately."

On Feb. 8, when Justice Department officials finally met with members of the American Hotel and Lodging Association, they "refused to consider our industry's concerns or consider any flexibility," the industry group said.

The lodging industry calls the Justice Department's regulations "vague and overbroad," and it says the department's interpretation of the Americans With Disabilities Act has been "harsh and unyielding."

The American Hotel and Lodging Association is urging its members to "contact Congress today and express your opposition to this hard line approach taken by DOJ."

It also says it is working with attorneys "to assess a legal response to this hard line and disappointing approach from DOJ."