Last month, we wrote about the upcoming deadline (March 15th) for compliance with 2010 ADA Standards that the hospitality sector, among other industries, face. Recently, the Department of Justice (DOJ) further complicated the issue for hotels and lodging facilities on whether portable (non-fixed) aquatic lifts satisfy the ADA requirements.
Up until now, popular opinion and interpretation within the hospitality industry suggested a portable lift could comply with the regulations if utilized correctly. However, because some U.S. Department of Justice (DOJ) employees had stated that portable lifts could be impermissible under any condition, lodging advocacy organizations such as the American Hotel & Lodging Association (AH&LA) as well as many state lodging associations, have been persistently urging the DOJ to clear up this issue.
The DOJ weighed in on these inquiries and issued what some are calling, including the AH&LA, a “burdensome interpretation” of when and how lifts need to be installed at swimming pools under the revised ADA guidelines. Although the DOJ did not specifically address spas, the principles as set forth in the DOJ guidance could apply to spas as well.
According to the DOJ, swimming pools and spas in lodging properties must come into compliance with the new ADA accessibility regulations to the extent such modification is “readily achievable.” Because this language is purposefully ambiguous, each business owner or operator must determine whether modifying the property is something they could do without significant difficulty or expense. What does that involve? It means taking the following issues into consideration:
- The nature and cost of the action;
- Overall resources of the site or sites involved;
- The geographic separateness and relationship of the site(s) to any parent corporation or entity;
- The overall resources of any parent corporation or entity, if applicable; and
- The type of operation or operations of any parent corporation or entity, if applicable.
According to the AH&LA, the 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. The 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 did not mention that “legitimate safety considerations” are to be considered in the “readily achievable” analysis.
What does this mean for your hospitality insureds?
With only three weeks away from the compliance deadline, it’s imperative that hotel owners and operators that haven’t yet met these standards look at their cost-benefit, risk-reward analysis to determine what needs to be done at their particular property. What’s more, it’s important that you discuss this issue with them to make sure they’re properly insured.