Justice Department Extends ADA Compliance Deadline For Pools And Spas To January 31, 2013 But Leaves “Fixed” Lift Requirement Intact.

The American Hotel & Lodging Association (AH&LA) scored a victory for the lodging industry and other businesses with pools and spas when the Department of Justice (DOJ) announced on May 18, 2012 that it would extend the Americans with Disabilities Act (ADA) compliance deadline for existing pools and spas to January 31, 2013. Minh Vu, the leader of Seyfarth's ADA Title III Team, served as the AH&LA's outside counsel on this matter.

The extension was substantially longer than what the DOJ initially had proposed following strong objections by the lodging industry and other business groups to new requirements concerning pool lifts that were announced by DOJ in a technical guidance dated January 31, 2012. The requirements are that pool lifts used to provide accessible entries into existing pools and spas (1) must be "fixed" unless not "readily achievable," (2) must be next to the pool/spa at all times when the facilities are open, and (3) cannot be shared between two bodies of water even if they are in the same location. DOJ subsequently clarified in a May 2, 2012 webinar that "fixed" means attached to the pool deck in some way. This means that "portable" lifts brought out upon request would not be acceptable, and every pool would have to have its own lift or ramped entry, unless the business can demonstrate that having a fixed lift or sloped entry is not "readily achievable." Only at that point can a portable lift be used.

The hospitality and business community viewed the technical guidance as a significant change from the pool lift requirements issued by DOJ in its September 15, 2010 final regulations and launched an intensive campaign to reverse these substantive changes and delay the initial compliance date of March 15, 2012.

AH&LA's efforts resulted in last minute action by DOJ to extend the March 15, 2012 deadline to May 21, 2012 while it considered comments to a Notice of Proposed Rulemaking (NPRM) to further extend the deadline to September 17, 2012. AH&LA submitted extensive comments explaining that a longer extension was needed to allow lodging facilities to develop their compliance plans in light of the new "fixed" lift requirement and to order and install the required equipment. Other business groups, including the one representing the pool and spa industry, supported AH&LA's position. This issue received considerable Congressional attention which prompted a House Judiciary Subcommittee hearing as well as the passage of a House appropriations bill that, if made into law, would prohibit DOJ from enforcing the fixed pool lift requirement for one year. Ms. Vu testified on behalf of the AH&LA at the House hearing.

DOJ's decision to extend the compliance deadline to January 31, 2013 for existing pools and spas is a significant victory, particularly because the outdoor pool season will not begin in some parts of the country until several months later.

The announcement by DOJ does not change the substance of DOJ's "fixed" lift requirement. In retaining this requirement, DOJ did not address concerns raised by AH&LA and other business groups such as the increased liability associated with making lifts permanently available when life guards are not present, the reasonableness of sharing of lifts between multiple pools and spas, or the extensive construction and electrical bonding work needed to install fixed lifts.

In granting a longer extension than previously proposed, DOJ credited many of AH&LA's arguments. DOJ stated that the additional time will allow covered entities to analyze whether it is readily achievable to install a fixed lift and to implement their compliance plans. The DOJ noted that some owners and operators were having difficulty locating available fixed compliant pool lifts for purchase. DOJ also noted the concern that businesses unable to obtain compliant pool lifts would close their pools or purchase non-compliant pool lifts. The DOJ had received over 1,400 comments in favor of an extension, and nearly 500 comments opposing it.