Regulatory Update – October 2011
By John M. Bredehoft, Robert C. Goodman Jr., Labor & Employment
Helping the Hospitality Industry Cope with Compliance Under the Americans with Disabilities Act After the 2011 Revised Federal Regulations
A new playing field
For the first time in twenty years, the U.S Department of Justice extensively revised federal regulations governing compliance with Title III of the Americans with Disabilities Act of 1990. Title III of the ADA governs access to “public accommodations,” a term that expressly includes hotels, motels, and inns. A number of the new rules are critical to the daily operations of members of the hospitality business. The detailed new requirements for the reservation process are not effective until March 15, 2012, but the other regulations on conduct are effective now. At the same time, the 18-month phase-in period for the September 2010 “Accessibility Guidelines” on structures ends, and those Guidelines become effective, on the same day: March 15, 2012.
The basic ground rule: must make changes that are “readily achievable”
In general, the new regulations increase reliance on the concept of making changes that are “readily achievable.” The ADA defines that nebulous term as, “easily accomplishable and able to be carried out without much difficulty or expense.” The Department of Justice decided not to adopt a specific standard for determining how much a small business was required to spend before a change was not “readily achievable.”
Accessibility and reservations: revamp before March 15, 2012:
The 2011 revisions entirely change the way in which a property must present itself to potential guests with disabilities. Fortunately, this part of the new regulations does not come into effect until next March – but thought and planning for compliance should be underway now. The new reservation rules require:
The owner or operator of a property must provide a disabled potential guest with all of the information about “accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.”
The new rules cover online reservations as well as reservations made through third parties – and the hotel has the responsibility to provide the required information to any third party.
24 hour hours a day
Reservations must be available for accessible rooms at the same time and manner as other reservations: 24-hour reservation lines that allow accessible rooms to be reserved by calling between 6:00 a.m. and midnight are forbidden.
Each property must provide detailed information about what is (and what is not) accessible to individuals with disabilities; the designation “accessible room” no longer is sufficient.
The potential guest must be made aware of the number of beds in the room; the type of shower or bath access; whether visual communications or alarms are available, and the like. The San Diego Marriott Marquis just settled a nasty case that came about when a guest with disabilities was unable to get an “accessible” room with two beds and was charged for the adjoining room.
If a “grandfathered” room is called “accessible” because it complies with the 1991 structural access standards rather than the 2010 standards, that information must be made available to any potential guest.
Upgrade your check-in area
Fully-accessible check-in facilities must be available.
The new regulations make significant changes in the way rooms are reserved and assigned.
“Accessible” rooms may not be given to non-disabled guests until all of the non-accessible rooms in that category have been exhausted. If a specific type of accessible room is requested at the time of reservation – two beds, with an accessible shower and “enhanced visibility” dial on the telephone – that specific room must be blocked for that particular guest.
Service animals – llamas out, dogs & miniature horses in
The Department of Justice noted an increasing trend in disabled guests showing up with “wild, exotic, or unusual species” claimed as “service animals,” including pigs, llamas, snakes, iguanas, and parrots. The new regulations define the term “service animal” – at least for places of public accommodation – as a dog.
Service animals must be permitted to go anywhere the guest with a disability may go; a service animal may not be removed unless it is out of control or it is not housebroken.
When a guest appears at registration with a service animal, hotel staff are not permitted to ask the guest what disability the guest has; the inquiry is limited to whether or not the animal is, indeed, a service animal.
The Department of Justice rejected a proposal to exclude “dangerous breeds” of dogs from the definition of “service animal.” Even if an inn is located in a jurisdiction that bans pit bulls, a pit bull that is a genuine “service animal” must be treated as would any other dog.
And the miniature horses you have been waiting for . . .
The Department of Justice did permit one exception: the new rules specify that a miniature horse that has been trained as a “service animal” must be admitted “where reasonable.” To determine whether the miniature horse’s presence is “reasonable,” a hotel owner is entitled to consider whether the horse’s presence could compromise safe operations; whether the facility can accommodate the size and weight of the horse; whether the horse is under the owner’s control – and whether the miniature horse is “housebroken.”
While the regulations prohibit charging a guest a room surcharge for the service animal, the Department of Justice does permit the inn to charge the guest for cleanup of any “accidents” the service dog – or service horse – may have had.
Wheelchairs & Segways® in the hallways
Every hotelier knows that a guest in a wheelchair must be permitted to use the wheelchair to move about the hotel, to visit the restaurant, and to use public spaces such as the lobby, reception area, and conference facilities. Wheelchairs can go, in short, anywhere pedestrians can go.
Advocacy groups made a concerted effort to expand this requirement to other motorized personal mobility devices, including the Segway® – even where hotel policy prohibits the use of such devices inside the building. These groups were successful, but only in part. The 2011 regulations maintain the existing requirements for wheelchairs (even if motorized) and any un-motorized personal mobility device.
For the much faster, heavier, and more intrusive motorized personal devices, the property owner must allow a disabled guest who needs to use the device to use it in the same way as a wheelchair – unless the use is not in accordance with “legitimate safety requirements” that have been “adopted” by the hotel.
Don’t ask too many questions
Hotel staff are asked to inquire whether the motorized device is necessary due to the disability – and can even ask to see a “handicapped parking” placard or similar proof – but again are not allowed to ask what the nature of the disability is.
Although the 2011 regulations did not specifically address the issue, the Department of Justice has signaled that it soon will consider whether operators of swimming pools should be required to provide “aquatic wheelchairs” for guests with disabilities who wish to use the pool.
On the horizon: new beds
Do beds that rest on the floor, with no gap, provide sufficient clearance to allow a personal lift to raise the guest into the bed? Ironically, thicker mattresses and more substantial beds may have made it more difficult to move from wheelchair to bed – and the Department of Justice says that it intends to do something about it in the near future.
A double whammy – the 2010 design standards will also be here:
In September of 2010 new “Accessibility Guidelines” for structural items were issued, with an 18-month phase-in period that, not coincidentally, ends – and the new standards become effective – on March 15, 2012. Some highlights:
“Common use circulation paths” within employee work areas that are less than 1,000 square feet are exempt from being made accessible. Kitchens in quick-service restaurants, cocktail bars, and the employee side of service counters are frequently covered by this exception. But workspaces larger than 1,000 square feet must have accessible circulation paths for employees.
Additional accessible public entrances
The 1991 Standards required half of a facility’s public entrances to be accessible. The 2010 Standards requires at least sixty percent of public entrances to be accessible. For example, under the 2010 Standards where two public entrances are planned in a newly constructed facility, both entrances must be accessible.
The 1991 Standards, at sections 4.1.2 (5)(b), 4.6.3, 4.6.4, and 4.6.5, require one in every eight accessible parking spaces to be van accessible. Although the 2010 Standards do not increase the total number of “accessible” spaces required, the 2010 Standards do require one in every six accessible parking spaces to be van accessible.
The 2010 Standards do not prohibit automobiles other than vans from using van accessible parking spaces. The Department does not distinguish between vehicles that are actual ‘vans’ versus other vehicles such as trucks, station wagons, sport utility vehicles, and the like. The only change was to increase the proportion of spaces that must be accessible to vans and other vehicles equipped to transport mobility devices.
The rules are complex and expensive, especially if you do not comply:
Many of the requirements imposed by the 2011 regulations are quite detailed. Not all of them can be discussed here. For example, the Department of Justice considered, but rejected specific exemptions for small swimming pools (under 300 linear feet perimeter), and exemptions for two-person steam rooms. Those issues are left to the imprecise “readily achievable” standard.
The ADA has something to say about almost every aspect of a hotel’s operations, from the number of accessible parking spaces to clearances in exercise rooms, the size, and placement of entrances, and the height of customer service counters. The new regulations also contain “grandfathering” provisions that may exempt property from some of the structural alteration requirements (although not from the type of behavioral requirements discussed in this memorandum). ADA lawsuits are expensive, unsatisfying, and difficult to defend; property owners and operators must carefully consider their obligations under the Act.
For Further Information Contact:
Business, Corporate, and Planning Advice
Robert C. Goodman, Jr.
ADA Regulatory, Compliance, and Litigation
John M. Bredehoft
Anna Richardson Smith
Or any member of the Kaufman & Canoles Team
(757) 624.3000 www.kaufCAN.com.
The contents of this publication are intended for general information only and should not be construed as legal advice or a legal opinion on specific facts and circumstances. Copyright 2023.