Duff on Hospitality Law

A recent case in federal district court in Florida foreshadows the beginning of an expanded reach of Title III of the Americans with Disabilities Act (ADA). As a whole, the Act prohibits discrimination on the basis of disability. Recently, a growing number of lawsuits filed by the Department of Justice (DOJ) and private litigants threatening class action lawsuits serves as a strong caution to businesses operating websites to increase accessibility of those sites to disabled individuals.

If you had asked me one month ago to predict the winner of the presidential election, I would have been wrong. Therefore, rather than make my own [ill-fated] predictions of the changes that await employers when PEOTUS takes office, I consulted my trusty Magic 8 Ball. Here’s what it predicted:

Will the overtime rule ever become law?     

MY SOURCES SAY NO.

We all have heard by now that the Department of Labor (DOL) rules extending eligibility for time-and-a-half overtime pay to some 4.2 million additional workers (including many employees in the hospitality industry) are on hold thanks to an injunction by a federal court judge in Texas. So what now?  The DOL under the Obama administration was expected to appeal the ruling to the US Court of Appeals for the 5^th Circuit, but the Trump administration has different priorities and may decide not to pursue an appeal after all.

In December 2012, the U.S. Department of Justice (DOJ) settled a case with Lesley University, requiring Lesley University to take significant, comprehensive measures to accommodate the needs of students with serious food allergies. Details on the settlement can be found here. DOJ took the position that food allergies may constitute a disability under the ADA, and that the many steps required in the settlement were mandated by the ADA’s requirement that public accommodations make reasonable modifications to their policies, practices, and procedures that are necessary to ensure that individuals with disabilities have access to their goods and services.

However, the ADA does not require a public accommodation to engage in any measures that would “fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations” offered.  Perhaps Lesley University could have relied on that defense if it had litigated, rather than settled with DOJ, but it is impossible to predict what the outcome would have been and no one can blame Lesley University for declining to find out.

The DOJ – Lesley University settlement has had many of us worrying that restaurants are already or will soon be in DOJ’s sights for examination of allergy-free items and allergen-free facilities. While we are still concerned about the potential impacts of the DOJ - Lesley University settlement, we have not yet seen evidence of increased investigations by the DOJ. Even more encouraging, a technical assistance document released by the DOJ after the settlement with Lesley University gives some hope that DOJ is taking a reasonable approach that is consistent with the ADA. The technical assistance document confirms that “a restaurant may have to take some reasonable steps to accommodate individuals with” food allergies, such as “omitting or substituting certain ingredients upon request if the restaurant normally does this for other customers.” However, DOJ confirmed that the ADA does not require restaurants to change their menus to offer gluten or allergen-free foods. DOJ also emphasized that Lesley University’s situation was unique because it involved mandatory meal plans.

We will continue to monitor this issue along with other ADA public accommodation issues, but for the moment we wanted to pass along some good news on this issue.

Please contact me if you have any questions.

If you are a regular reader of Duff on Hospitality, you are well aware of the recent battle between the U.S. Department of Justice (DOJ), which enforces the Americans With Disabilities Act (ADA), and hospitality owners and trade associations over swimming pool accessibility regulations (see previous posts here and here). With DOJ’s twice-extended deadline for compliance right around the corner on January 31, 2013, and industry-backed legislation dead in Congress committees, pool owners need to focus on compliance with DOJ’s requirements immediately, if they have not already. Mike Brunet, a partner in our Seattle office's labor and employment group and member of our Hospitality Practice Team, has prepared this post to help readers understand the requirements and nuances of the new law. Please feel free to contact Mike Brunet directly if you have any questions.

What are the DOJ requirements?

Under DOJ’s interpretation of the applicable regulations on swimming pool accessibility, owners of pools or spas open to the public must, if “readily achievable” (more on this below), provide at least one accessible means of entry to small swimming pools, which must either be a sloped entry or a pool lift. Larger swimming pools (with more than 300 linear feet of wall) must have two accessible means of entry, one of which must be a sloped entry or a pool lift. Each pool or spa on the property (with a minor exception for clustered spas) must have a separate accessible means of entry. If the means of entry is a pool lift, which is the most popular choice given its cost relative to other means of entry, it must be affixed to the pool deck or apron in some manner, and must be in place and ready for use (including charged batteries, if using a battery-powered lift) during all hours that the pool or spa is open for use.

It has been a busy year thus far for public accommodations issues under the Americans with Disabilities Act (ADA). In this week’s post, Mike Brunet, a member of our Hospitality, Travel & Tourism team, rounds up past issues, discusses a new public accommodations ruling that could affect your business, and speculates as to where public accommodations issues might go in the next year, informed by his attendance at the recent 2012 National ADA Symposium. 

March 15, 2012: ADA revisions become effective.

As detailed in a prior 2012 post, the first significant revisions to public accommodations regulations in almost 20 years became effective March 15, 2012. These revisions are far-ranging, potentially requiring changes to existing and planned features in any place of public accommodation, including hospitality properties and restaurants.

April-May, 2012:  The battle over swimming pool accessibility heats up.

Also discussed in two posts previously this year (here and here), was a battle between the U.S. Department of Justice (DOJ), which enforces ADA regulations, and hospitality owners and trade associations over swimming pool accessibility. DOJ interpreted the new ADA regulations to require fixed (as opposed to portable) swimming pool lifts that could not be shared between pools, while hoteliers raised safety, financial and availability reasons why the DOJ’s interpretation was incorrect. DOJ extended the date to comply with its interpretation until January 13, 2013, and legislation has been introduced in Congress to clarify what is required to comply with swimming pool access regulations.  

In Mike Brunet’s April 16, 2012 post, he discussed the history and potential future of the Department of Justice’s (DOJ) controversial requirement that hoteliers install permanent lifts at all swimming pools to comply with the Americans with Disabilities Act (ADA). Today, he writes about a recent extension on the deadline to satisfy DOJ’s mandate. 

As of May 16, hotel owners and others operating swimming pools open to the public had a mere five days, until May 21, to install permanent pool lifts at their facilities pursuant to the DOJ’s interpretation of the 2010 Standards to the Americans with Disabilities Act. However, on May 17, the DOJ extended the deadline for compliance with its requirement by over eight months, to January 31, 2013. The fact that DOJ extended the deadline is not a total surprise, as the agency has been accepting comments on a possible six-month extension since March of this year, and interested parties, including hoteliers and trade associations, have been vocal in their support. However, the length of the extension is somewhat of a surprise, especially given DOJ’s hard-line stance on this issue in the past.

Washington hotel owners, operators and suppliers enjoyed two days of learning, socializing and recognizing their colleagues' successes at the recent Washington Lodging Association's 2011 Annual Conference at the incredible Tulalip Resort and Spa. This year's Conference featured a variety of presentations on workforce challenges, recent changes to the ADA, revenue management, fraud prevention and social media.