Questions and Answers: Accessibility Requirements for Existing Swimming Pools at Hotels and Other Public Accommodations

REQUIREMENTS FOR EXISTING POOLS

4. My pool already existed before the effective date of the new rule. What am I required to do to provide pool access to customers with mobility disabilities?

The ADA requires businesses to make existing pools accessible only when it is "readily achievable" to do so. Readily achievable means that providing access is easily accomplishable without much difficulty or expense. The 2010 Standards provide the benchmark, or goal, for accessibility in existing pools. (See Question 2 for the 2010 Standards requirements for pools). However, owners of existing pools need to comply with the 2010 Standards only to the extent that doing so is readily achievable for them.

The 2010 Standards for pool lifts require lifts to be fixed and to meet additional requirements for location, size of the seat, lifting capacity, and clear floor space. Therefore, if a business can provide a fixed lift that meets all of the 2010 Standards’ requirements without much difficulty or expense, the business must provide one. If no fully compliant lift is readily achievable for the business, the business is not obligated to provide a fully compliant lift until doing so becomes readily achievable. In addition, the business may provide a non-fixed lift that otherwise complies with the requirements in the 2010 Standards if doing so is readily achievable and if full compliance is not.

5. Are there any tax credits or deductions to help me comply?

Yes. To assist businesses with complying with the ADA, Section 44 of the IRS Code allows a tax credit for small businesses and Section 190 of the IRS Code allows a tax deduction for all businesses. The tax credit is available to businesses that have total revenues of $1,000,000 or less in the previous tax year or 30 or fewer full-time employees. This credit can cover 50% of the eligible access expenditures in a year up to $10,250 (maximum credit of $5000). The tax credit can be used to offset the cost of undertaking barrier removal and alterations to improve accessibility; providing accessible formats such as Braille, large print and audio tape; making available a sign language interpreter or a reader for customers or employees; and for purchasing certain adaptive equipment. The tax deduction is available to all businesses with a maximum deduction of $15,000 per year. The tax deduction can be claimed for expenses incurred in barrier removal and alterations. To learn more about the tax credit and tax deduction provisions, contact the DOJ ADA Information Line (at 800‒514‒0301 (voice); 800‒514‒0383 (TTY).

6. What if I can’t afford to install a fixed lift in my pool, or it would be difficult to do so?

In that case, installation is not required. If it is not readily achievable for a business to provide a fixed lift – that is, if it would be too difficult or expensive to make these changes – then a business may use other ways, such as a non-fixed lift, to provide access to the pool. If it is not readily achievable to provide access to the existing pool, even by way of a non-fixed lift, the business need not do so. Nonetheless, it should make a plan to achieve compliance with the pool access requirements when doing so becomes readily achievable.

7. What is the difference between a “portable” lift and a “fixed” lift?

The real issue is not whether a lift is “portable” versus “fixed,” but rather whether a lift is “fixed” versus “non-fixed.” A fixed lift means that the lift is attached to the pool deck or apron in some way. A non-fixed lift means that it is not attached in any way. Therefore, a portable lift that is attached to the pool deck would be considered a fixed lift. Thus, owners of portable lifts can fully comply with the access requirements by affixing their lifts to the pool deck or apron. They are required to do so if that is readily achievable, except in certain circumstances discussed below.

8. How do I determine if it is readily achievable for me to install a lift in my existing pool?

Readily achievable means that providing access is easily accomplishable without much difficulty or expense. This is a flexible, case-by-case analysis, with the goal of ensuring that ADA requirements are not unduly burdensome, including to small businesses. The readily achievable analysis is based on factors such as the nature and cost of the needed action; all the financial, staff and other resources available to the business and any parent entity; and the impact on the operation of the site, including legitimate safety requirements that are necessary for safe operation.¹ Generally, a mere franchisor-franchisee relationship, where the franchisor does not own or operate the franchisee business, will not require consideration of the franchisor’s resources in determining what is readily achievable.

This is the same standard that places of public accommodation have been using for all covered elements of existing facilities since 1992. Guidance on “Common Questions: Readily Achievable Barrier Removal” is available at http://www.ada.gov//adata1.htm (1996).

¹ Specifically, in determining whether an action is “readily achievable,” the following factors should be considered:

1) The nature and cost of the action;

2) The overall financial resources of the site or sites involved; the number of persons employed at the site; the effect on expenses and resources; legitimate safety requirements necessary for safe operation, including crime prevention measures; or any other impact of the action on the operation of the site;

3) The geographic separateness, and the administrative or fiscal relationship of the site or sites in question to any parent corporation or entity;

4) If applicable, the overall financial resources of any parent corporation or entity; the overall size of the parent corporation or entity with respect to the number of its employees; the number, type, and location of its facilities; and

5) If applicable, the type of operation or operations of any parent corporation or entity, including the composition, structure, and functions of the workforce of the parent corporation or entity.

9. I already purchased a portable lift before March 15, 2012. Can I still use it?

Yes. If you have purchased a non-fixed lift before March 15th that otherwise complies with the requirements in the 2010 Standards for pool lifts (such as seat size, etc.), you may use it, 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 regarding whether the use of portable pool lifts would comply with barrier removal obligations, the Department, 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 and who keep the portable lifts in position for use at the pool and operational during all times that the pool is open to guests so long as those lifts otherwise comply with the requirements of the 2010 Standards. Generally, lifts purchased after March 15, 2012 must be fixed if it is readily achievable to do so.

If a portable lift was purchased after March 15, 2012, the obligation to remove barriers is an ongoing one. If it becomes readily achievable to attach the lift to the pool at a later date you must do so. Manufacturers, for example, are providing kits to attach portable lifts.

10. I do not have a lift at my pool and it is not readily achievable to provide one now. Do I have to close the pool?

No. If accessibility is not readily achievable, the Department recommends that businesses develop a plan to provide access into the pool when it becomes readily achievable in the future. Because accessibility in existing facilities is an ongoing obligation, a covered entity must provide accessible features when it becomes readily achievable to do so.

11. I’ve decided that it is readily achievable to provide a lift, but the lift I ordered is on back order. Do I have to close my pool until the lift arrives?

No. A business in this situation should order and install a compliant lift and install it when it becomes available.