Ms. Pohlid

ADA Compliance

Integrating ADA Accommodations with Architectural Appeal

By Kathleen Pohlid, Counsel, DHPM, PC

More stars or diamonds on a hotel quality rating potentially translate into a significant increase in room rates and revenues. However, regardless of the rating or luxurious facilities offered, hotel ownership and operators will find that non-compliance with the Americans with Disability Act (ADA) can be very costly. Hotel elements can be integrated with ADA accommodations to achieve both legal compliance without compromising architectural appeal and design. Several ADA requirements and elements are important to consider towards achieving this goal.

Since the ADA was enacted in 1990, it prohibited places of public accommodation from discriminating against persons with disabilities and required such places to be designed, constructed, and altered in compliance with ADA standards. The ADA defines places of public accommodation to include places of lodging which contain more than five rooms for rent or hire that are inns, hotels, or motels. The 1991 Standards for Accessible Design (1991 Standards) set forth accommodation requirements for hotel parking, hallways, common areas, restaurants, and rooms.

On July 23, 2010, the Department of Justice, which enforces the ADA accommodation standards, published revised regulations, set forth at 28 C.F.R. Part 36, which went into effect on March 15, 2011. Section 36.304(d) of the revised regulations establishes options and criteria by which hotels and other places of accommodation may be permitted to continue to utilize the 1991 Standards or adopt the 2010 Standards for Accessible Design (2010 Standards) as the standard for compliance. This option does not apply to elements newly scoped under the 2010 Standards which were not previously addressed under the 1991 Standards; those items must comply with the 2010 Standards.

Hotels that comply with the 1991 Standards as of March 15, 2012, may continue to utilize those standards for ADA compliance providing they do not make any alterations or renovations affecting the accessible elements. Hotels that are newly constructed or which make renovations or alterations to accessible elements on or after March 15, 2012 must comply with the 2010 Standards. Furthermore, an establishment’s compliance choice - either the 1991 or 2010 Standard – applies to its entire facility. Therefore, it is important that establishments examine their facilities now for compliance and consider which option will best facilitate their goals towards achieving ADA compliance and architectural and customer appeal.

Although the ADA provides an exception for structural impracticability, DOJ recognizes this exception only in “rare circumstances when the unique characteristics of terrain prevent the incorporation of accessibility features.” Furthermore, to the extent the exception applies, facilities are to make portions of such features “accessible to the extent that it is not structurally impracticable.” In most cases, this means that hotels will be required to ensure full compliance with either the 1991 Standards or the 2010 Standards.

Below are key considerations and principles to address in integrating ADA compliance into architectural appeal:

1. Remember the goal: enjoyment for persons with disabilities to the same extent as those without disabilities. Hotel owners and operators who review their facilities while keeping this key principle in mind will enhance their ability to identify issues that are potentially non-compliant and determine solutions to achieve compliance and appeal. In many cases, accessibility provides appeal to guests beyond those with disabilities.

For example, a facility that has a sunken sitting area off the lobby area may consider it an inviting place for guests to congregate, meet or wait. However, the charm and function of this area also poses an ADA compliance issue for persons with mobility disabilities if they cannot enjoy the same privilege available to guests who are not disabled. A solution may be to install an ADA compliant ramp, providing ample space for a wheelchair access and which compliments the room design. This may increase the appeal of other guests who do not have disabilities, including those who may have luggage or roller bags, a temporary injury, or who prefer not to negotiate steps.

2. Pedestrian Access Equals Wheelchair Access. The revised regulations impose new requirements pertaining to wheelchairs and manually powered mobility aids. Places of public accommodations are required to permit the use of wheelchairs in all areas open to pedestrians. Section 36.311 of the revised regulations requires covered hotels “to permit individuals with mobility disabilities to use wheelchairs and manually-powered mobility aids, such as walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities in any areas open to pedestrian use.” Additionally, hotels are required to make reasonable modifications to their policies to permit other powered mobility devices. Those policies should consider the following factors: the type, size, weight, dimensions, and speed of the device; the volume of pedestrian traffic; design and operational characteristics of the facility; whether legitimate safety standards can be established to permit the safe operation of the device; and whether the use of the device creates a substantial risk of serious harm to the environment or natural or cultural resources.

3. Curb appeal. Rating entities of hotel establishments consider the curb appeal of a hotel in their rating assignment. To achieve an upper level rating, hotels must have excellent curb appeal and factors to facilitate entry by guests and covered entry to protect guests from the elements. The same factors should apply for ADA accessibility. The 2010 Standards require vehicle access aisles to be at the same level as the vehicle pull-up space they serve. Also, if a covered entrance is provided for guests, it should be ADA accessible as well. Open and accessible entrances, which comply with the ADA standards for accessibility, also enhance curb appeal, inviting and facilitating entry for all guests. Obstacles that block the entry and paths to it should be removed. This also includes barrier removal of environmental elements such as winter snow.

4. Interior accessibility. Spacious interiors can be a plus for appeal and when they allow for accessibility of those with disabilities. This includes providing ample access space for wheelchair passage and turn around space. Hotels that do not have ease of interior accessibility, to include elevator access between floors, may not achieve as high of a rating as those that do. The 2010 Standards set forth an exemption for elevators with respect to facilities that are less than three stories or that have less than 3000 square feet per story. Elevators which are used by guests must have unobstructed entrances and tactile controls.

5. Upscale features and furnishings. Elements such as flooring, counters, and furniture enhance a hotel’s appeal. ADA accessibility considerations also apply with these elements. Both the 1991 and the 2010 Standards require flooring surfaces to be “stable, firm and slip-resistant” in order to be deemed accessible. Furthermore, carpets must be securely attached to prevent a trip hazard and if a cushion or pad is used, it must be firm. Carpets with heavy pile greater than 1/2 inch do not comply with the ADA standards. Facilities must also ensure that where counters and furniture is provided to guests, that accessible options are also available. Hotels should not neglect fixtures such as door handles and switches. Under the ADA, controls requiring tight grasping, pinching or twisting to operate are not deemed accessible.

6. Fitness Areas – pools, etc. These areas must not be neglected for an establishment to achieve higher rating, or to ensure for ADA compliance. The 2010 standards set forth requirements for accessiblity of fitness equipment and pools. Since these elements were not addressed in the 1991 standards, establishments must ensure that these facilities comply with the 2010 Standards. Hotels with fitness areas must ensure that at least one of each type of fitness equipment provided also be on an accessible route with clear floor space to allow use by persons with disabilities. Swimming pools must be provided with either a pool lift, sloped entry, or transfer system to facilitate use by persons with disabilities. Additional access requirements may apply for large sized pools. Additionally, spas and steam rooms must be accessible to persons with wheelchairs to include accessible doors, clear floor space, and if a bench is provided, an accessible bench must also be available.

7. Signs. The 2010 Standards to the ADA set forth detailed requirements for tactile symbols and Braille options for directional signs and operational controls. These details include requirements for size, spacing, finish, contrast, dimensions, the use of capitalization, as well as the locations of the signs. Additionally, if both visual and tactile characters are required for signs, either one with both features, or two separate signs with each required feature, must be provided.

8. Amenities – gift shops, vending, restaurants, laundry services. Do not neglect other establishments which are on site, even if they are not operated by the hotel establishment. Facilities and vendors should ensure that all tenants and operators are aware of their ADA obligations and that contracts and agreements specify their respective responsibilities.

9. Compliance is in the details. Since ADA accessibility is measured in inches – and in some cases less - a fraction of an inch can make the difference compliance and non-compliance. Both the 1991 and the 2010 standards require attention to detail in measuring slopes, widths, heigths, lengths, depths, and pull-forces. A facility which installs a ramp without ensuring the ramp is properly sloped and with proper dimensions and surface composition, may be making an incorrect assumption that it is accessible when in fact it may be non-compliant.

10. Service Service Service. Architectural appeal for a hotel will involve much more than just visual appeal, and should convey the facility’s desire and attention to service for its guests. In this regard, ADA training is critical for hotel staff who interact with guests. It is important that hotel facilities develop an ADA policy, integrate ADA accommodation as part of their guest service, and ensure that its staff are appropriately trained. In many cases, it is the hotel staff which can make the difference in a guests perception as to the quality of their stay and the accessibility of the facility.

Kathleen Pohlid is an attorney with the law firm of DHPM, PC in Nashville, Tennessee. She practices in the areas of employment, litigation, governmental compliance, occupational safety and health, Americans with Disabilities Act (accommodation & discrimination) and health law issues including Medicare audits. Ms. Pohlid has over 20 years of combined federal government and private sector experience in employment law and litigation. She both writes and speaks professionally on employment law and regulatory compliance matters. Ms. Pohlid can be contacted at 615-425-3702 or kpohlid@dsattorneys.com Extended Bio...

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