With the leaves changing, the temperature falling, and the ski resorts making snow, that can only mean one thing: ski season is right around the corner as is the January 31, 2013 Americans with Disabilities Act (“ADA”) compliance deadline for pool accessibility. As required by the ADA, any place of public accommodation must have a stationary pool lift readily available for use during all hours in which the pool is open for use.
This requirement was originally scheduled to become effective on March 15, 2012; however, due to a large number of concerns regarding what type of pool lift could be used to satisfy the requirements of the ADA, the compliance deadline was moved. During that time, the Department of Justice (“DOJ”) issued a statement clarifying the requirement. All pools that are required to comply must have a permanently affixed chair, meaning that if the pool deck were turned upside down, the pool lift must stay with the pool deck. This statement eliminates a large number of the portable pool lifts that were being marketed as “Compliant Chairs”.
That said, if your association purchased a non-fixed lift prior to March 15th that otherwise complies with the requirements, the DOJ has authorized its use as long as you keep it in position for use at the pool and operational during all times that the pool is open to guests. Because of a misunderstanding by some pool owners as to whether the use of portable pool lifts would comply with barrier removal obligations, the DOJ, as a matter of prosecutorial discretion, will not enforce the fixed elements of the 2010 Standards against those owners or operators of existing pools who purchased portable lifts prior to March 15, 2012. Generally, lifts purchased after March 15, 2012 must be fixed to comply with the “permanent attachment” requirement if it is readily achievable to do so.
The DOJ warns though, that the requirement to be compliant and the standard of “readily achievable” is a continuing standard. If the chairs become worn or a kit becomes available to attach the chairs to the pool deck, you may be required to do so in the future.
The DOJ may enforce this requirement by filing a lawsuit against an association and if the association is found to be in violation of this ADA requirement, the DOJ will ask for, and the Federal Courts may grant, compensatory damages and back pay to remedy the discrimination. The DOJ may also obtain civil penalties up to $55,000 for the first violation and $110,000 for any subsequent violation against a violating association.
With this in mind, we encourage all associations that may be deemed a place of public accommodation to consult with their legal counsel regarding this issue. If obtaining a pool lift is readily achievable, you are required to do so.