by Heather M Eichenbaum Esq
In recent years, the Americans With Disabilities Act (ADA), a compilation of federal American laws intended to ensure equal treatment for the disabled, has impacted the amusement and hospitality industries. Many other countries have similar laws.
ADA rules requiring access for the disabled to swimming pools, commonly found at waterparks, resorts, health clubs and some amusement parks, are at issue. For some time, newly constructed pools were required to include a fixed lift to accommodate the disabled. However, in January 2012, the US Department of Justice (DOJ) advised that fixed lifts would also have to be added to existing pools. The DOJ originally indicated that these had to be installed by March of this year; however the deadline has since been extended to January 31, 2013.
Fixed lifts are installed in the shallow end of pools and used to assist the disabled in getting in and out of pools. A permanent installation, fixed lifts cost thousands of dollars, require extensive construction for installation and disrupt business during installation. They also pose a safety concern.
Although guests are usually supervised by lifeguards, the fixed lift adds a new danger where children could swim or bump into it or dive or jump off it and be injured. Pool owners will need to exercise particular diligence to ensure guests aren’t injured after addition of the lift.
Portable lifts, which are less expensive and do not involve construction interruption, can be used in certain circumstances to satisfy the ADA requirement but also raise concerns. Pool owners must ensure that employees know where the portable lift is stored and how to properly use it or it is useless. Moreover, according to the DOJ, a portable lift must be in place whenever the pool is open. Portable lifts may also be used if they’re attached to the pool deck. However, the same safety concerns of children being injured on or around portable lifts exist.
Pool owners can apply for an exemption from the requirement but must prove that compliance is not “readily achievable”. This essentially means that installation of the fixed lift would be either too difficult or too expensive for the pool owner to accomplish. Even where a pool owner proves that installation of a fixed lift is not readily achievable, it may be required to purchase a portable lift and ensure its availability to the disabled.
Failure to comply with the ADA requirement for lifts will result in significant fines. Such failure also provides the basis for a discrimination lawsuit by anyone who claims the need for a lift that isn’t available. Pool owners must keep themselves apprised of the DOJ’s advice on this issue in the coming months and plan ahead to ensure timely compliance by next January. Because pool lifts have been a sore subject for the disabled for years, it will not be surprising to see a flood of lawsuits on February 1. By taking action now, you can ensure your facility is not one of those in the firing line.
Heather Eichenbaum is a member with Spector Gadon & Rosen PC, practising in Pennsylvania and New Jersey. In addition to defending amusement venues, she also handles and provides training in crisis management. Legal counsel to and a board member of the National Association of Amusement Ride Safety Officials in the United States, she is also a member of IAAPA, NJAA, OABA and the IISF. Should you need legal assistance, reach Heather at: +1 215 241 8856 or heichenbaum@lawsgr.com
