ORIGINAL ARTICLE FROM THE AH&LA
February 1, 2012
DOJ Takes Hard Line on ADA Pool Lift Guidance
After months of pressure from AH&LA, the Department of Justice (DOJ) yesterday issued a burdensome interpretation of when and how lifts need to be installed at swimming pools under the Americans with Disabilities Act (ADA).
Although the DOJ did not specifically address spas, the principles set forth in the DOJ guidance could apply to spas as well.
What you need to know
Lifts need to be available and in position at each pool at all times when a pool is open to the public.
Only “fixed” lifts are acceptable, unless a hotel can demonstrate that installing such a lift is not readily achievable**.
For pools owned by state and local governments, sharing lifts between two pools is not allowed, unless the entity can show an “undue burden.”
Lifts cannot be shared between a pool and a spa.
Pool lift batteries must be fully charged and ready for use at all times the pool is open.
** If it is not readily achievable to have a fixed lift, then a portable one can be used if it meets the 2010 Standards requirements and the lift is securely in place during all operating hours.
Many are interpreting this as portable lifts are not acceptable; this is not entirely true and we are continuing to investigate the issue. In fact the DOJ indicates that Portables are acceptable when installation of a “fixed” unit is not readily achievable meaning that it can be carried out without much difficulty or expense. It can be argued that with the substantial weight of a portable unit and the locking or lockable casters, a portable lift can be “fixed” to the pool deck, meaning that it is “Attached or placed so as to be immovable”. Additionally, Aqua Creek has confirmed with an independent ADA consultant that portable lifts could be acceptable under section 103 Equivalent Facilitation. That response is highlighted below and the formal document from that consultant is attached.
“· In lieu of a permanently-installed pool lift, a portable lift which is fixed to the pool deck can be used. It cannot be moved and must be available for independent use at all times. This could be offered as “equivalent facilitation” under the ADA. Equivalent facilitation is defined as…
Section 103 Equivalent Facilitation
Nothing in these requirements prevents the use of designs, products, or technologies as alternatives to those prescribed, provided they result in substantially equivalent or greater accessibility and usability.
Advisory 103 Equivalent Facilitation. The responsibility for demonstrating equivalent facilitation in the event of a challenge rests with the covered entity. With the exception of transit facilities, which are covered by regulations issued by the Department of Transportation, there is no process for certifying that an alternative design provides equivalent facilitation”
It can also be noted that the purchase of multiple portable units can be more readily achievable than installing multiple anchored units due to the costs of installation in some areas or situations.
The main clarification in this response from the Department of Justice has been to indicate that one lift cannot be used to service multiple bodies of water by moving it back and forth between them when requested. It also indicates that the lift or form of access provided must be ready and available at each pool or spa when it is open to the public.
The last bullet point outlines the fact that products used to “remove barriers” need to be maintained as outlined in the revised Title II and Title III requirements. Refer to sections 35.133 of Title II and 36.211 of Title III for specifics on maintenance of accessible features. Portions of that specific text are listed here:
Maintenance of accessible features
(a) A public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities by the Act or this part.
(b) This section does not prohibit isolated or temporary interruptions in service or access