Pool and Spa Accessibility Requirements Take Effect on January 31

by Manatt, Phelps & Phillips, LLP

On January 31, 2013, the deadline for lodging facilities and other places of public accommodation to comply with new accessibility regulations for pools and spas takes effect.  The regulations were issued by the Department of Justice under the Americans with Disabilities Act ("ADA") and are set forth in Sections 242 and 1009 of the 2010 Standards for Accessible Design.  In general, the regulations require that each pool and spa provide one or more designated means of access for persons with mobility impairments.  These accessibility requirements apply to all pools and spas that are constructed or "altered" (discussed below) after January 31, 2013.  They also apply to all existing pools and spas, whether or not they are altered, insofar as compliance is "readily achievable" (also discussed below).

Means of access
The regulations specify the following means for entry and exit:

  • Gradual slope
  • A lift that can be independently operated
  • Special stairs
  • Transfer wall (a wall that enables a person to get out of a wheelchair, transfer onto a wall, and then enter a pool or spa)
  • Transfer system (a system that enables a person to get out of a wheelchair, onto a platform, and then enter a pool or spa by a series of descending steps)

Which types of pools and spas require which means of access
Every pool and spa on a property must be accessible to persons with mobility impairments, but the specific means of access depends on the type of pool or spa:

  • Pools with a perimeter of at least 300 feet must provide at least two separate means of access.  The primary means must be either a slope or a lift.  The secondary means may be a slope, a lift, a transfer wall, a transfer system, or stairs.
  • Pools with a perimeter of less than 300 feet must provide at least one means of access, consisting of either a slope or a lift.
  • Wading pools must provide a slope in the deepest part of the pool.
  • Wave pools, leisure rivers, and sand-bottom pools (and any other type of pool that provides only one area for users to enter and exit) must provide at least one means of access for disabled persons in the same location, consisting of a slope, a lift, or a transfer system.
  • Spas must provide at least one means of access-either a lift, a transfer wall, or a transfer system.  For clustered spas, at least 5% of the spas in the cluster must be accessible.

What is required for each method of access
Each means of access must satisfy detailed specifications set forth in Section 1009 of the 2010 Standards for Accessible Design.  The types of specifications (but not the specifications themselves) are as follows:

  • Slope.  A sloped entry must satisfy specific requirements for (i) width, (ii) degree of slope, (iii) depth below waterline, (iv) top and bottom landings (depending on degree of slope), and (v) handrails (except in wading pools).
  • Lift.  A pool lift must satisfy specific requirements for (i) location, (ii) height and width of the seat, (iii) footrests, (iv) armrests, (v) independent operability, (vi) controls and operating mechanisms, and (vii) submerged depth.
  • Stairs.  Accessible stairs must satisfy specific requirements for (i) treads, (ii) risers, and (iii) handrails.
  • Transfer wall.  A transfer wall must satisfy specific requirements for (i) deck space, (ii) height, width, and length of the wall, (iii) surface, and (iv) grab bars.
  • Transfer system.  A transfer system must satisfy specific requirements for (i) transfer space, (ii) platform height, depth, and width, (iii) surface, (iv) transfer steps, and (v) grab bars.

DOJ clarifications and interpretation
The Department of Justice ("DOJ") has issued interpretive guidelines, which are available here.  The DOJ has also clarified certain ambiguities and open issues during question and answer sessions, some of which are discussed here.  In addition, the DOJ has spoken informally with the American Hotel and Lodging Association and provided further information regarding its interpretation of certain open issues.  Some positions and statements of note by the DOJ are:

  • Each pool must have an accessible means of entry.
  • A lift may not be shared between a pool and a spa.
  • Lifts must be poolside and fully operable, with batteries charged, whenever a pool or spa is open.
  • Lifts must be attached to the pool deck rather than portable, unless (i) installing a fixed lift is not readily achievable, or (ii) a portable lift was purchased before March 15, 2012.  Any portable lift must meet the requirements of Section 1009.
  • If a lift has been purchased but is on back order as of January 31, 2013, the pool or spa may remain open.
  • The choice of lift should take into account the personnel and money necessary to keep the lift in place and in working condition.
  • Personnel must be trained to maintain the lifts and help guests use them.
  • There may be tax credits and deductions for compliance.

The DOJ's interpretation of its own regulations is obviously important, both generally and in the event that it commences an investigation or undertakes an enforcement action.  The DOJ's position is also important (but not necessarily conclusive) in the event that any private plaintiff or class of plaintiffs commences litigation to attempt to enforce these regulations.

What does "alteration" mean?
Existing pools that are altered must meet each of these accessibility requirements.  "Alteration" is loosely defined under the ADA as a change that "affects usability."  Mere maintenance is not an alteration.  Nor, in the case of a pool or spa, would changes to mechanical or electrical systems, such as filtration and chlorination, be an alteration.  Rather, an alteration is likely to mean some kind of structural change to the pool or spa or adjacent surface area.

What does "readily achievable" mean?
For existing pools and spas, each of these accessibility requirements applies only insofar as compliance is readily achievable. "Readily achievable" means "easily accomplishable and able to be carried out without much difficulty or expense."  However, while easy to articulate, this standard is often difficult to apply, as it depends on many factors, including financial resources, the nature and cost of the accessibility measure, safety issues, and the number of employees.  Moreover, an analysis of financial resources may take into account the resources of any parent corporation.  In addition, an assessment of "readily achievable" is not frozen in time.  A facility must continuously reassess its ability to comply with these regulations, and compliance must be implemented once it becomes readily achievable. 

The DOJ has clarified a few points regarding readily achievable standard for these new regulations.  For example, the financial resources of a franchisor that does not own or operate the site need not be considered when assessing the financial resources available to a franchisee.  And, limitations on insurance coverage or an increase in insurance rates may not be considered when assessing whether compliance is readily achievable.

Finally, please note that some states have their own disability access laws and regulations.

If possible, you should seek legal guidance on all of these issues-and especially regarding whether full or partial compliance is readily achievable.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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