The Americans with Disabilities Act: Frequent Asked Questions (ADA FAQ)
What You, Your Business and Your Clients Need to Know in Order to Be Compliant
What is ADA?
What sections of ADA apply to swimming pools, wading pools and spas?
Title III (Private Industry) – Title III prohibits disability discrimination by any place of public accommodation (commercial facilities). Examples of Title III entities include a place of recreation, a place of education, and a place of lodging.
What signifies a property as a Public Accommodation?
Clear cut Title III facilities include:
- Hotels and Bed & Breakfasts are two clear examples of public accommodations. These establishments are open to the public, actively rent out units when owners and/or tenants are absent. They also advertise and take reservations over the phone. The provision of meals and housekeeping services are also a characteristic of a public accommodation.
- Timeshares and vacation homes that operate as a hotel have to comply.
Although the ADA does not affect private or residential property, such property can still be considered a Public Accommodation if it opens its doors to the public (non-members, non-residents) for use of the facilities:
- Condominiums and homeowner associations are susceptible to having to comply with the ADA. A good rule of thumb when trying to determine if a pool in a condominium or homeowner association would be considered a public accommodation and be required to comply is: Does it “act like a hotel,” renting out units when owners are absent, advertising such availability, etc?
- Private clubs, which are defined as having a restrictive membership policy and considerable dues, are typically not required to comply with ADA. However, if the pool is open to non-members then they must comply. Further, states can be more stringent if they so choose. Florida, for example, does not exclude private clubs from ADA requirements.
More specifically, if any of the above mentioned entities allow:
- Swim Meets that allow outside members or non-residents then it could be required to comply during those hours of use where the facilities were being used by the public.
- Pool memberships that are purchased by non-residents then this affects some apartment complexes, condominiums, as well as various homeowners associations. The memberships would allow the public to use the available facilities, making it a public accommodation.
The general rule is if a pool is open to a body of people outside of the general membership or non-residents, the pool is considered a public accommodation during this length of time. However, if the private club or homeowner/condominium association member has guests visiting them, this does not require compliance. For example, if a function such as a birthday party takes place on one of these properties and non-members or non-residents are invited to attend, compliance should not be required.
Nevertheless, if a facility is unsure if they fall under the ADA requirements it is wise to consult an attorney. Anyone can file a complaint or lawsuit if they think a facility should have accessibility and it does not.
What are the permitted means of access?
What are the swimming pool specific requirements?
*Note: 1) The ADA recommends that when using more than one means of access, the means be different, i.e., a lift and a transfer wall, and be provided in different locations in the pool. 2) Pool walls at diving areas and areas along pool walls where there is no pool entry because of landscaping or adjacent structures are still to be counted when determining the linear feet of pool wall.
What are the wading pool specific requirements?
What are the spa specific requirements and how does the ADA apply to portable spas/hot tubs?
Do the new requirements apply to both existing and new swimming pools, wading pools and spas (in-ground and portable) that fall under the Title II or III categories?
What is the compliance date and how exactly will existing pools and spas be affected?
- An existing pool or spa going under alteration/renovation on or after March 15 2012: must meet all the ADA requirements if the alteration/renovation is in relation to installing an accessible means. For example, if you alter the pool pump this would not be in relation, but if you are putting in stairs, that would be. The point is if the alteration provides you the opportunity to completely comply with requirements (two means of access for pools greater than 300 linear feet, one means for those less), then one must do so.
- Existing construction not going under renovations or alterations must try to comply. Meaning if a permanent fix is not feasible, then a readily achievable fix needs to be made.
Are there service requirements for ADA equipment?
Can a single means of access be shared by two or more pools or a pool and a spa?
Must the means of access be fixed, or can it be removable?
What options are available for a wading pool?
Is a portable lift an acceptable means of compliance?
- For Title II facilities, if a public entity chooses to acquire equipment (e.g.,?a portable lift) to provide program accessibility, the entity should select equipment that includes features required by the 2010 Standards.
- For Title III facilities, if the installation of a fixed lift is not readily achievable, the public accommodation may then consider alternatives such as use of a portable pool lift that complies with the 2010 Standards. The DOJ goes on to say that it is important to note that the barrier removal obligation is a continuing one, and it is expected that a business will take steps to improve accessibility over time.
- Under any circumstances, the lift must be in place at all times that the pool/spa is open. It may not be kept in storage until requested.
Following the release of this document, a meeting between DOJ and hotel & lodging representatives occurred. In this meeting the DOJ stated that in their opinion:
- “Fixed” means “attached,” meaning that the lift must be attached to the deck in some manner so that if the space were turned upside down, the lift would remain attached to the deck.
- Portable lifts with wheels that lock to prevent movement are not “fixed” unless attached in some other manner to the deck, which can include a permanent sleeve anchor into the deck if the connection point is secured with screws, bolts, or clamps.
- If the lift is attached in a manner that requires a tool for removal it would be considered fixed.
While the DOJ statements at this meeting are not regulations, nor are they an official technical assistance document, they are illustrative as to their thinking.
This Technical Assistance Document from the DOJ, only a month and a half before the March 15 compliance deadline, could adversely affect facilities that in good faith thought they had complied with the requirements by purchasing a portable lift. Remarks at this meeting further confuse the issue. DOJ representatives have stated that they decided to require a fixed versus portable lift because a fixed lift ensures that the equipment cannot be removed, and that the 2010 Standards cover fixed elements. The APSP, along with other concerned industry stakeholders, are working to obtain a meeting with DOJ and express its view 1) that there is no functional difference between a portable and fixed lift, 2) that the 2010 Standards do not require that a pool lift be attached and 3) that all options that exist in the market place should be allowed, as long as they meet the 2010 Standards.
What does Readily achievable mean?
How will these requirements be enforced?
How does the ADA affect existing state and local building codes?
What financial assistance is available to employers/owners to help them make reasonable accommodations and comply with the ADA?
A special tax credit is available to help smaller employers make accommodations required by the ADA. An eligible small business may take a tax credit of up to $5,000 per year for accommodations made to comply with the ADA. The credit is available for one-half the cost of “eligible access expenditures” that are more than $250 but less than $10,250.
A full tax deduction, up to $15,000 per year, also is available to any business for expenses of removing qualified architectural or transportation barriers. Expenses covered include costs of removing barriers created by steps, narrow doors, inaccessible parking spaces, restroom facilities, and transportation vehicles. Additional information discussing the tax credits and deductions is contained in the Department of Justice’s ADA Tax Incentive Packet for Businesses available from the ADA Information Line. Contact information is on page 30. Information about the tax credit and tax deduction can also be obtained from a local IRS office, or by contacting the Office of Chief Counsel, Internal Revenue Service.
Where can I learn more about these requirements?
Who do I call to get additional technical assistance on the regulations?
- ADA information line: 1.800.514.0301 (voice)
- M-W, F 9:30 a.m. – 5:30 p.m. (Eastern Time)
- Thurs. 12:30 p.m. – 5:30 p.m. (Eastern Time)
- DOJ – Technical Assistance: 1.800.514.0301
- ADA Access Board – Technical Assistance: 1.800.872.2253
Background History of ADA
The original enforcement guidelines did not provide accessibility standards for swimming pools and spas. However, in 2004, the Department of Justice issued enforcement guidelines that included pools and spas. At that point they were just that — guidelines — and not law.
In July 2010, the Department of Justice announced its final rule making. The revised regulations were then published in the Federal Register on September 16, 2010 and will take effect on March 15, 2011. Compliance with these regulations will be required no later than March 15, 2012.
Swimming Pool, Wading Pool, and Spa Accessibility
The ADA is also enforced indirectly by requiring compliance prior to receiving licenses, certifications, or grants from prevailing authorities. For example, prior to a local government receiving a federal grant, it must provide proof of compliance with a wide array of regulations ranging from environmental mandates to equal opportunity programs to ADA compliance. In addition, in most localities, any new construction or building modification will not receive a certificate of occupancy without meeting all relevant ADA requirements. Many states will adopt the latest guidelines into their state or local building code.
The Ultimate in Pool Care and the American Disabilities Act
As you may already know, the Department of Justice passed new measures to ensure all pool patrons have access to public swimming pools. Most public swimming pools are now required to install chair lifts and/or ramps. With the new January 31, 2013 ADA-compliance deadline for swimming pools and spas now behind us, we urge swimming pool and spa managers to contact us to help make your facility fully compliant.
If you have further questions, please feel free to contact us at 631-242-2667 or your regional ADA office which may be found at www.adata.org.
In the meantime, if you’re not one of our existing clients, please feel free to request a bid or a free estimate for the many pool services and products we offer.