ADA Update

ADA Update:

New ADA Requirements for Reservations and Facilities


The March 15, 2012 deadline for hotels to comply with the 2010 Americans with Disabilities Act Standards for Accessible Design is in the history books. With the notable exception of the Department of Justice’s recent extension for compliance with pool lift requirements, hotels should already be in compliance with the 2010 Standards.
 
Hotels in compliance with the 1991 Standards by March 15, 2012, need not do more to upgrade existing facilities, except where the 2010 Standards cover previously unregulated areas. That means that if hotel facilities were in compliance with the 1991 Standards by March 15, they need only make “readily achievable” changes to newly regulated public accommodations, like pools, spas, saunas, and reservation systems. Hotels building or remodeling after March 15, must be fully compliant with the 2010 Standards in newly built or remodeled areas.  

“Readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). Although that sounds straightforward, the determination of what “without much difficulty or expense” means is measured by several factors, including the nature and cost of the modification, the overall size and financial resources of the business and the parent company, whether the modification would implicate safety concerns, the impact on the site, and the geographic separateness of the facility. In short, “readily achievable” means that a large company with greater financial resources must do more than a smaller company with less financial resources. The term involves a case-by-case factual determination, which often precludes quick resolution of litigation.   

RECREATIONAL FACILITIES
The 2010 Standards include new accessibility requirements for pools, spas, exercise rooms and saunas. For pools and spas, the new compliance deadline is May 21, 2012, unless further extended. The Notice of Proposed Rulemaking requests public comment on whether the deadline should be extended for 180 days. More information on the extension is available on DOJ's website. Before it begins enforcement efforts, the DOJ is expected to adopt a clearer standard that should address the issue of whether a fixed or portable pool lift is required. Existing guidance on pools, spas, and wading pools is available online at OregonRLA.org/Compliance.  

For other recreational facilities, the new Standards are already in effect. For saunas, compliant doorways, a clear space for a turning radius, and a bench with a back or affixed to a wall are required. For exercise rooms, clear space to approach, transfer, and a turning radius are required. For more information on the all of the 2010 Standards for recreational facilities, see ADA’s website (see links at OregonRLA/Compliance).  

RESERVATION SYSTEMS
Hotels with online reservation systems must make it possible for a disabled guest to book accessible rooms without having to take extra steps like calling the hotel, if non-disabled guests do not have to call to book a room. Disabled guests must be able to choose a room type and make reservations during the same hours and in the same way as non-disabled guests. To comply with the new regulations, hotels must identify accessibility features of accessible rooms on their websites, so that a guest with a disability will be able to determine if a particular room or room type is accessible for his or her particular disability. Additionally, all accessible rooms of each room must be held for disabled guests until all of the non-accessible rooms are booked. Hotels must also be able to block reservations on accessible rooms and allow disabled guests to book a specific room, not just a specific room type. Hotels are not responsible for information on third party travel websites, but should work with such websites and encourage them to assist in compliance efforts. The new regulations for reservations systems are set forth at 28 C.F.R. 36.302 subdivision (e), available at ADA.gov or visit ORLA’s website at OregonRLA.org/Compliance).   

AVOIDING LITIGATION
Department of Justice settlement agreements often reflect current trends in litigation, and over the past few years, the DOJ has entered into settlement agreements with numerous hotels – both chains and single hotels. The subject matter of some recent settlements with hotels includes:  
•    Service animals cannot be subject to “pet” rules, like requiring a deposit.
•    Accessible rooms need to include each “room type.”  For example, both two-bed and one-bed rooms must be available.
•    Accessible rooms should be dispersed, not clustered together apart from other guests.  
•    Accessible rooms for hearing impaired guests need to have surface space and electrical outlets near a telephone so that guests can plug in and use their assistive equipment.
•    Fire alarm systems must have both visual and audible alarms.
•    Reservation systems need to provide information about accessible rooms.

OTHER IMPORTANT STEPS FOR AVOIDING LITIGATION:
•    Don’t forget the basics – don’t clutter doorways or have objects within a turning radius.
•    Don’t exceed the maximum number of inches for the operable parts of towel dispensers, soap dispensers, soda machines, hooks, or other things that a disabled guest may use.
•    Replace doorknobs and faucet knobs with levers or other technology to the extent required.  
•    Provide reasonable accommodations when full compliance is not readily achievable.
•    Plan for accessibility before remodeling or constructing new places of accommodation.
•    Train staff to go the extra mile for disabled guests, and to own a complaint until it is fixed.
•    Appoint an accessibility manager or officer who understands the ADA and is ready to assist disabled guests.
•    Respond to demand letters from guests or their counsel, generally with the help of your counsel, as litigation can often be avoided by prompt attention to a report of a problem.  

Visit OregonRLA.org/Compliance for links, resources and access to webinars on ADA Compliance. | JANET L. GRUMER, PARTNER, DAVIS WRIGHT TREMAINE LLP

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JANET L. GRUMER • JanetGrumer@dwt.com