What was originally intended under the Americans with Disabilities Act (ADA) as an opportunity to increase access to recreational services for travelers with disabilities has become an example of a broken system of overreach by those most committed to protecting their rights. When the ADA regulations were initially published in September 2010, they didn’t require fixed lifts for hotel pools and spas. In fact, the Department of Justice (DOJ) urged portable lifts and even discussed exempting smaller pools and spas. Then, on Jan. 31, 2012, less than two months from the compliance deadline, the DOJ decided fixed lifts were the only acceptable option. This was a last minute, unrealistic change in the regulations that the industry was not prepared to comply with and overwhelmingly objected to. (The deadline was eventually moved to Jan. 31, 2013, following months of hard work by the American Hotel and Lodging Association and the lodging industry.)
Lodging operators across the country then rushed to meet the fixed lift requirement. An issue of supply and demand materialized and not enough fixed lifts could be produced to equip the number of pools and spas that needed them. Not to mention, the installation of fixed lifts is considerably more complicated than a portable lift that can be used immediately. Installing a fixed lift requires a contractor, permits, partial demolition of the pool deck, electrical bonding, and deck reconstruction. And the exact standards for a fixed lift are unclear. In addition, there are no specific guidelines or even a certification process from the states or city regulating departments to ensure the lift has been installed correctly. This is an important process that would safeguard the guests and property owners.
The dangers associated with children playing and jumping off of the lifts also present a risk. The lodging industry supports reasonable pool and spa entry requirements for travelers with disabilities, as well as sensible measures that provide access while protecting children from harm.
So in the aftermath of this new regulation, there are still plenty of owners and operators who don’t understand what they are being required to do. Can these pool lifts be covered? Can they be locked? What sorts of structure limitations necessitate waivers? Who decides what are reasonable accommodations and what is readily achievable, as noted in the regulation? And lastly, what is the liability for a lodging operator that doesn’t provide monitoring of a pool lift when an incident occurs?
On top of the cost of installing the pool lift, the regulation also increases the operating costs for properties with pools, starting with maintenance and frontline staff. Adding a lift also means training all associates to have it available at all times (portable or fixed) and ready to use without complication to the guest. Lodging properties also have to make sure all front desk staff members are aware of the standards and knowledgeable and able to provide necessary and critical information to ADA guests at check-in.
And most important, even after all precautions, training, and signage, lodging operators face a Catch-22. If an incident occurs related to a lift, the industry is an automatic target of lawsuits. Many small owner-operators are a constant target of drive-by lawsuits (individual civil lawsuits) even if they don’t have the financial resources to fight or are in a position to win. It will be months and possibly years before we determine some clarity on the legal responsibility and expectations of the lodging operator. I suspect in the interim that these lawsuits will force some owners to drop their keys back to the lender to avoid astronomical litigation fees and a poor reputation.
And as summer approaches, let’s not forget the seasonal pool operators. Pools and hot tubs are often a main attraction at leisure destination properties. Many of these properties have either chosen or have been forced to shut down the pool or hot tub because they cannot comply with this mandate. This eventually will result in a huge loss of revenue by removing an expectation of having a pool open at a leisure property. This is certainly a lose-lose situation for all—even the travelers with disabilities.
There are already waves of lawsuits being filed across the United States related to pool lifts. A Texas law firm recently filed a number of lawsuits in Indiana that demand lodging operators prove properties are in compliance to current ADA rules, starting with the pool lift requirement.
I have highlighted the aftermath of the mandates handed down by the DOJ in respect to the new ADA laws and pool lifts. Unfortunately, if my experience and education serve me right, my fear is that the aftermath has yet to begin.
Rajesh M. Shendge is president and COO of SAP Hotels LLC.
