Duff on Hospitality Law

As a result, on October 27, 2011 the American Hotel & Lodging Association sent a letter to the Department of Justice (DOJ), the administration that enforces the Americans With Disabilities Act, asking for clarification on various pool lift issues, including whether portable pool lifts would satisfy the 2010 Standards, and how quickly the lifts would have to be put in place. AH&LA pointed out significant safety concerns related to permanent lifts, including the risk that guests (including children) could injure themselves on or around the lift unless a lifeguard were present during all operating hours.

On January 31, 2012, DOJ issued a guidance taking a very hard line on the requirements of the 2010 Standards. Specifically, DOJ stated that only “fixed” (i.e., permanent, rather than portable) pool lifts are acceptable unless a hotel can show that installing a fixed lift is not “readily achievable,” and even then the portable lift must be installed during all hours that the pool is operating. DOJ also took the position that sharing a lift between two pools is not acceptable unless the operator can show an “undue burden” from having one fixed lift per pool. 

DOJ’s unexpected response three months after AH&LA’s letter left hoteliers scrambling to prepare their pools by the compliance deadline, March 15, after which they could potentially face fines and lawsuits as a result. After determining that they could not meet this deadline, partially due to limitations at the few manufacturers of fixed lifts, hospitality industry members met with DOJ on February 8 to express their concerns and to request additional time to comply with the new guidance. DOJ told the hoteliers that no extension would be forthcoming.

However, on March 15, the day that the new requirements were to go into effect, DOJ announced that the deadline for compliance with pool accessibility requirements would be extended by 60 days. One week later, on March 22, DOJ published an extension of the deadline to May 21, 2012, and asked for comment an additional six-month compliance extension.

Most recently, on March 26, 2012, Congressman Mick Mulvaney (R-SC), along with 26 other co-sponsors, proposed the Pool Safety and Accessibility for Everyone (Pool-SAFE) Act. The effect of the proposed legislation would be to delay the pool lift requirement by a year after enactment of the Act, to permit the use of portable lifts on request to satisfy the 2010 Standards, and to allow sharing of lifts between multiple pools (or a pool and a spa) on a property. The bill has been referred to the House Committee on the Judiciary to determine whether it should be reported to the full House for consideration. Since this time, an additional 20 House members signed on as co-sponsors of the bill.

It is too early in the life of the Pool-SAFE Act to opine on whether it will be enacted (or even move beyond the House committee). It is also too early to opine on whether DOJ will grant another six month extension, as contemplated in the March 22 Federal Register publication. We will provide additional updates as soon as any new developments occur. However, for the moment only fixed pool lifts are acceptable (unless not readily achievable), and the compliance deadline is May 21. As a result, we recommend that hoteliers with pools check with local dealers on the availability and manufacturing lead time for fixed pool lifts.