By Minh N. Vu

The Department of Justice’s (DOJ) deadline for hotels, health clubs, and other public accommodations to retrofit their existing pools and spas with either a pool lift or sloped entry ramp is January 31, 2013.  Under regulations the DOJ issued in 2010, all pools with less than 300 linear feet of wall must have either a pool lift or a ramp that complies with the 2010 ADA Standards.  All larger pools must have a second accessible means of entry that is a lift, ramp, stairs, transfer wall, or transfer system.  Businesses with spas must also retrofit them by this date with either a lift or a transfer wall, but if there is more than one spa in a location (i.e., a “cluster”), only one or 5% (whichever is greater) of the spas must be made accessible.  These requirements apply unless it is not readily achievable for the business to comply.

Back in January 2012, the DOJ caused an uproar in the business community by issuing — six weeks before the March 15, 2012 compliance deadline — a guidance stating, among other things, that pool lifts must be “fixed” to the deck or apron.  These industries had understood the regulations to allow the use of portable lifts as long as they comply with the technical specifications. DOJ’s new interpretation complicated compliance efforts because fixed lifts typically require drilling into the pool deck, permits, and electrical bonding work.  It also became obvious that the lift manufacturers would not be able to make enough lifts for all the pools and spas that need them.  Under threat of congressional and other action, the DOJ agreed to extend the deadline for compliance to January 31, 2013.

DOJ issued its last guidance on the pool lift issue on May 24, 2012.  While this guidance leaves some questions unanswered, it does state the DOJ position on a number of key issues that are worth reiterating here:

The definitions from DOJ:

►   A “fixed lift” is one that is “attached to the pool deck or apron in some way.”

►   A “non-fixed lift” is one that is not attached in any way to the pool deck or apron.

►   A “portable lift” is one that can be moved.  A portable lift can be a “fixed” lift if it is attached to the pool deck or apron in some way.

DOJ’s interpretation of its regulations:

►   Businesses must install fixed lifts at existing pools and spas unless it not readily achievable to so.  This is DOJ’s position even though the regulations don’t explicitly say that the lifts need to be fixed.  Thus, a business that is sued for not having a fixed lift could challenge DOJ’s interpretation, which legally is not entitled to deference.

►   After a battle with the lodging industry over the fixed lift requirement, DOJ said it would exercise its prosecutorial discretion to not enforce the fixed lift requirement against businesses that had purchased portable (i.e., non-fixed) lifts prior to March 15, 2012 that comply with 2010 Standards.  Private plaintiffs, however, are not bound by DOJ’s stated self-restraint.

►   If installing a fixed lift is not readily achievable, then a non-fixed lift should be installed.

►   If it is not readily achievable to provide any accessible entry into a pool or spa (keep in mind that the lift is not the only option), the pool or spa can remain open without a retrofit.

►   Despite safety concerns expressed by the lodging industry, DOJ has stated its view that it is not acceptable to bring out a lift upon request.  A lift must always be in position and ready for use when the pool and/or spa are open.

►   One lift cannot be shared between two pools or a pool and a spa, even if they are right next to each other.

►   Employees must be trained on how to use and maintain the lift.

►   Lift batteries must be charged and ready for use.

The guidance does not address the many questions that have come up since its issuance, such as: When is it not readily achievable to install a pool lift?  Must a lift be installed if the deck space is not enough to fully comply with space requirements?  Must a business install a lift if the pool deck is only accessible via stairs?  We will have to wait and see what positions DOJ takes in its enforcement activities.  In the meantime, there is a very real possibility that some businesses will close their spas because the additional cost of installing and maintaining a lift does not justify keeping the spa open and they are not willing to risk a lawsuit.