Accommodating guests of all shapes, sizes and stripes is what the hospitality industry is all about. But what happens when federal regulations come along during a difficult economic cycle that require your property to renovate? Well, that’s the reality you’re all facing after the U.S. Department of Justice (DOJ) published revised regulations in September 2010 for Titles II and III of the Americans with Disabilities Act of 1990 (ADA), which for most hotels will be enforced as of March 15, 2012. The 2010 Standards set minimum requirements – both scoping and technical – for newly designed and constructed or altered state and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities.
Yesterday, Kevin Maher, senior vice president of governmental affairs for the American Hotel & Lodging Association (AH&LA), hosted a webinar with ADA experts Minh N. Vu, partner in the Labor and Employment Department, Seyfarth Shaw LLP, and Karen Stephenson, litigation counsel in the Labor and Employment Department, Seyfarth Shaw LLP, to overview some of the logistics behind the new standards and get into the specifics of some of the most common elements that will affect hotels.
In a nutshell, ADA Title III prohibits discrimination by lodging facilities against individuals with disabilities. The law mandates three basic accessibility requirements.
1. Facilities must be accessible to individuals with disabilities.
“Physical facilities involve many complex issues, and it applies to everything,” says Vu. “The 2010 Regulations stipulate a new standard for an accessible facility, which involves everything from accessible rooms to how far a toilet has to be from a wall.”
2. Reasonable modifications must be made to policies, practices and procedures.
“Service animals are a great example of ‘reasonable modifications,’” says Stephenson. “Even if your hotel doesn’t allow pets, you have an obligation to allow service animals. You have to think of them as an extension of the person, one in the same, because they are not a pet; they’re a working animal.”
3. Provision of auxiliary aids and services at no additional charge, including those necessary to ensure effective communication with individuals with disabilities.
Even though this last one seems pretty straightforward, it hadn’t been covered in the previous guidance. In other words, this means that your hotel and employees have to be prepared to accommodate and communicate with anyone who has a speech, hearing or sight disability, for example, or any other disability, for that matter.
New Standards For Recreational Facilities Mean No Safe Harbors
While the ADA been around since 1990, with the first regulations published in 1991, facilities have had the ability to work under “safe harbor” clauses, which essentially allow them to meet regulations whenever they renovate their facilities, which provides some breathing room and flexibility.
“New construction after 1993 and alterations after 1992 were subject to the 1991 standards, so even if you have an older hotel, and the current space in question complies, then those elements don’t have to be brought up to 2010 standards immediately, until they are altered,” says Vu. “The DOJ says that facilities that have acted in good faith shouldn’t be penalized.”
The difference this time is that there haven’t been recreational standards published before, so your hotel couldn’t have been compliant in the past with the 2010 standards for those items, which was the impetus for the webinar, and the issue that’s going to affect hotels and resorts the most immediately. Here’s a list of the newly covered elements that will be affected at your hotels and resorts:
- Swimming pools, wading pools, and spas
- Saunas and steam rooms
- Exercise machines and equipment
- Play areas
- Fishing piers and platforms
- Recreational boating facilities
- Golf facilities
- Amusement rides
- Mini golf facilities
- Shooting facilities
- Team or player seating
- Accessible route to bowling lanes
- Accessible route to court sports facilities
Yesterday’s webinar focused just on the first three, which are the most common that you’ll come across at your properties, in addition to regulations surrounding service animals. We’ll look at those logistics more in depth in our next installment in this series, but for now, we’ll just take a quick look at the overall implications of compliance on your property.
Calculating the Cost of Non-Compliance
Generally, when the 2010 standards become mandatory on March 15, 2012, they will apply to “newly covered existing recreational elements that must comply with 2010 standards unless compliance is not readily achievable.”
“‘Readily achievable’ is defined as easily accomplishable ‘without much difficulty or expense,’ and as you might expect, it’s a very difficult thing to administer because it takes into account a number of factors and it’s case specific,” says Vu. “I can’t tell you that ‘X’ amount of money will be ‘too much.’”
Below is the criteria by which the DOJ would determine whether or not a facility would be able to extend its compliance:
- The nature and cost of the action
- The facility’s financial resources and the financial resources of any parent corporation/entity (if applicable)
- The administrative and fiscal relationship between the facility and any parent corporation/entity (if applicable)
- The effect of the action on the facility’s operations
- The number of employees at the facility
- Legitimate safety requirements
As you can see, the appeal process is in depth, there are no guarantees, and on top of that, you draw attention to yourself from the DOJ. Because these standards are new, all eyes will be on them to be completed. And be advised, the penalties for non-compliance are severe.
If the DOJ decides to pursue you for an ADA violation, it can seek a civil penalty of $55,000 for the first fine and $110,000 for any subsequent fines. While the DOJ is the only entity that can impose the fine, if you are not in compliance and a private litigant comes along, Vu says they will seek injunctive relief, file a court order for you to comply, and your facility would be responsible to pay attorney’s fees.
“Most clever plaintiff’s attorneys will apply state laws that have monetary damages as well,” Vu says. “It can be quite expensive [to avoid compliance].”
However, if you believe your property is in a position where it simply can’t meet the regulations financially or physically, it’s certainly worthwhile to appeal to the DOJ.
“If you are a really small business and truly can’t afford it, and you can demonstrate that, seek counsel before you determine your appeal to the DOJ,” Vu says.
All in all, the DOJ reports that the estimated cost of regulation to lodging industry will be nearly $1 billion – $929.87 million, actually, to precisely quote the number. Vu expects it to be much more than that. Why? Anyone who has done a renovation project before can easily answer that question.
That’s why it’s important to plan for the inevitable, a compliance date of March 15, 2012 for the new ADA standards. While there certainly are legitimate reasons why some hotels could receive leeway, in general these regulations will be enforced and you need to be ready. Hotel Interactive® will continue to detail this information for you and include responses to your questions, so stay tuned to our coverage in the coming months.
In the meantime, for more information on the subject, please visit the official standards page http://www.ada.gov/2010ADAstandards_index.htm
, or contact AH&LA Government Affairs.
And finally, test your knowledge of the new ADA rules here
on AH&LA’s site now!