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
The ADA is a wide-ranging civil rights law that prohibits discrimination based on disability. Disability discrimination occurs when an employer or other entity covered by the ADA treats an individual with a disability unfavorably or less favorably because she has a disability or a history of a disability. The law requires an employer or other entity to provide reasonable accommodation to an employee or applicant with a disability, unless doing so would cause significant difficulty or expense (“undue hardship”). The Department of Justice (DOJ) is the federal agency charged with enforcing the ADA.
Title II (Public Industry) – Title II prohibits disability discrimination by all public entities at the local and state levels. Examples of Title II entities include school districts, municipalities, cities, and counties.
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.
Pools under ADA regulations fall under either Title II (Municipal pools, school pools, government owned pools, etc.) or Title III (place of recreation, place of lodging), which addresses public accommodations.
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.
Permitted means of access are pool lifts, sloped entries (ramps), transfer walls, transfer systems, or stairs. The criteria that each of these means of access must meet can be found in chapter 10, section 1009, of the revised ADA guidelines. What type of means of access that must be used and how many means of access required, depend on the structure. These exact same requirements can also be found in the International Code Council Accessibility Standard, A117.1, Section 1109. Building departments typically rely on this document.
Both Title II and III entities are required to provide “accessible means of entry for pools.” Larger pools (greater than 300 linear feet of pool wall) require at least two means of access and smaller pools (less than 300 linear feet of pool wall) require at least one means of access. When providing only one means of access, it must either be a pool lift or sloped entry (ramp). Wave action pools, leisure rivers, sand bottom pools, and other pools where user access is limited to one area are not required to have more than one means of access, provided that means is either a pool lift, a sloped entry, or a transfer system. Catch pools that have a catch pool edge on an accessible route are not required to provide a means of access.
*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.
Both Title II and III entities are required to provide “accessible means of entry for wading pools.” Wading pools must have at least one means of access and that means must be a sloped entry (ramp). The sloped entry must extend to the deepest part of the wading pool, but it is not required to provide handrails.
The ADA does not distinguish between in-ground and portable spas. Both Title II and III entities that have any type of spa, in-ground or portable, are required to provide at least one “accessible means of entry.” The means of access can either be a lift, transfer wall, or transfer system. When spas are provided in a cluster (adjacent to each other) only one spa must provide a means of access.
Yes, the permitted means of access must be provided on all installations no later than March 15, 2012; however, if an existing facility determines compliance is not readily achievable, having a barrier removal plan in place is highly recommended.
New ADA regulations require that any new construction built on and after March 15, 2012 meet all new standards. Existing facilities must also comply by this date, as there is no safe harbor provision for pools and spas. Any type of barrier removal of an existing facility is required with two exceptions: if there is an historical nature of the building/facility or if barrier removal is not readily achievable, which can be construed as easily accomplished without much expense. Additional specifics regarding existing pools and spas include the following:
- 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.
Yes, mandated features must be maintained in working order. The regulations provide a “Maintenance of Accessible Features” provision which states that “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.” Per the Department of Justice (DOJ) guidance document released on January 31, 2012, “accessible pool features must be maintained in operable, working conditions so that persons with disabilities have access to the pool whenever the pool is open to others.”
In a recent meeting the Department of Justice advised the hotel & lodging industry that sharing a means of accessibility between two existing aquatic vessels is not permitted, except where installing separate means is not readily achievable. If a facility has two pools and a spa, for example, but can show that it cannot afford to install more than one or two lifts or sloped entries, it may be able to share, at least until full compliance is readily achievable.
According to the Department of Justice January 31, 2012 Technical Assistance Document, the means of access must be in place and operational at all times that the pool and/or spa is open.
The ADA requirement for a wading pool is a sloped entry (ramp) meeting certain specifications. If an existing wading pool has a sloped entry that does not meet the specifications or was built with a flat bottom, the only way to comply would be to tear up the pool and in most circumstances this would not be readily achievable. A best practice would be to develop a barrier removal analysis which documents the costs/difficulties in complying. Note that if the wading pool is undergoing renovations, then it must comply.
Section 1009 of the revised ADA guidelines specifies lifts but does not distinguish between portable and fixed lifts. Therefore, facilities have been considering and utilizing both these options. On January 31, 2012 the Department of Justice issued a Technical Assistance Document on accessible pools and this document stated the following:
- 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.
In the recent meeting between DOJ staff and the hotel & lodging industry, DOJ stated that in determining whether installing a fixed pool lift is readily achievable, it considers all the relevant factors, including the available resources of that facility and the resources of a parent company if such exists. Safety issues will also be considered, however the DOJ staff stated that they do not consider the risk of unsupervised misuse of a lift as a legitimate safety risk. If a facility can demonstrate tremendous hardship, they may be able to argue none of the means of entry can be achieved by March 15, 2012, or that not all the aquatic vessels can become compliant by such time. The facility should still have a “barrier removal plan” including a plan to set aside funds to achieve compliance. The DOJ has also emphasized that a facility’s financial circumstances could change from year to year, making further compliance readily achievable. Note the fact that tax credits are available, and that an option to lease a pool lift exists, which could make a hardship argument hard to demonstrate.
Enforcement will vary from state to state, but does not change the fact this is a federal requirement which preempts any conflicting or more lenient state provisions or enforcement. Failure to comply is therefore a violation of Federal Law. A state can choose to incorporate the federal provisions into their law or code and provide its own enforcement. A state can also choose to be more stringent then the federal requirements if they so choose, but they cannot be less stringent. Direct action against non-compliant facilities may be taken by local building or health officials enforcing state or health building codes that reference the new guidelines. Individuals may also file civil lawsuits against non-compliant facilities. Enforcement will in most cases occur by the filing of such civil lawsuits, seeking an injunction to compel compliance, recover attorney’s fees and actual damages. Indirect enforcement can occur when a local government becomes ineligible for a federal grant unless all facilities are in compliance.
Existing codes remain in effect. The ADA allows the Attorney General to certify that a state law, local building code, or similar ordinance that establishes accessibility requirements meets or exceeds the minimum accessibility requirements for public accommodations and commercial facilities. Any state or local government may apply for certification of its code or ordinance. Many state building codes may reference the ICC A117.1 Accessibility Standard rather than rely on the federal guidelines.
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.
- 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
The original Americans with Disabilities Act was signed into law on July 26, 1990. The law was divided into five subparts but for the swimming pool and spa industry the relevant sections are Public Entities and Public transportation (Title II) and Public Accommodations and Commercial Facilities (Title III).
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.
The swimming pool, wading pool, and spa guidelines that are now part of the ADA law are virtually the same for both Public Entities (Title II) and Public Accommodations (Title III) facilities. They stipulate that any swimming pool with less than 300 linear feet of pool wall must provide one means of access, and that means must be either a pool lift or a sloped entry. In addition, any pool that has over 300 linear feet of pool wall must provide two means of access, which can be any of the five designated means of access: pool lifts, sloped entries, transfer walls, transfer systems, or accessible pool stairs. The criteria that each of these means of access must meet can be found in chapter 10, section 1009 of the revised ADA guidelines. Wading pools must have one means of entry and that must be a sloped entry. Spas, both in-ground and portable, also must have one means of entry, which can be either a lift, transfer wall, or transfer system. The specific requirements that swimming pools, wading pools and spas must meet can be found in chapter 2, section 242 of the revised ADA guidelines.
There are some exceptions from the accessibility guidelines. Title II facilities can be excluded if they can prove that modifications would significantly alter the historic nature of the building. They could also be excused if they could demonstrate that making such modifications would create undue financial hardship for the facility. Title III facilities can be excluded if they can demonstrate that reasonable accommodations are not readily achievable. However, the Department of Justice has made it very clear that, given the flexibility and cost of a pool lift, it would be very difficult for any entity to escape their responsibility to provide access to a swimming pool.
ADA regulations are enforced directly and indirectly. Most direct enforcement is a result of civil lawsuits initiated by a plaintiff who sues for non-compliance. If the plaintiff prevails, the court usually issues a court order that requires the defendant to remedy the violation, and attorney’s fees for the plaintiff. There are generally no monetary awards provided to the victorious plaintiff.
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.