Last week, I had the honor of attending the Resort Hotel Association’s (“RHA”) Annual Conference at The Edgewater Hotel in Seattle. RHA is comprised of 130 independently-owned resorts, hotels, city clubs and spas in the United States and specializes in insurance programs that address the risks unique to the lodging industry. For the second year in a row, RHA invited me and my colleague, Jordan Schwartz, to speak on the Americans with Disabilities Act (“ADA”) and public accommodations issues that hotel and lodging operators face. The room was packed and due to constant questions from the audience we were unable to review all our material in the 75 minute speech. Needless to say, ADA compliance remains a hot topic within the hospitality industry!
Here are the main points from our speech:
- ADA Lawsuits continue to the flood the federal courts since the 2010 ADA Standards took effect in March 2012. Civil penalties increased to $55,000 per violation, and many lawsuits are now being filed after a potential guest merely calls the property to ask about accessibility standards. Hoteliers continue to struggle with responding to complaints from national advocacy groups and professional plaintiffs across the country.
- Pool Lifts - Fixed lifts should be in place at each pool, spa, Jacuzzi on property since January 1, 2013 unless you can demonstrate it is not readily achievable. Lifts must remain in operation at all times the pool is open which means batteries must be charged, covers must be removed, and lifts can't be locked away in storage pending a guest request. Hoteliers remain concerned about the significant liability and exposure from children or other unauthorized persons playing on the lifts that could lead to injury. Many operators at the conference reported that while they have installed the lifts, they have yet to be used in practice.
- Room Reservations – Under the 2010 ADA Standards, hotels must now modify their policies, practices, or procedures to ensure that individuals with disabilities can make reservations for accessible guest rooms during the same hours and in the same manner as other individuals; be able to identify and describe accessible features in the hotel and guest rooms offered through their reservations service; ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type; and prevent accessible guest rooms from being double booked. As a practical matter, this will require many hotel operators to revise their electronic reservations systems and to train employees who take reservations so that they understand the features of accessible rooms.
- Food Allergies – The Department of Justice has now identified all severe food allergies as disabilities, which could trigger reasonable accommodation requirements under the ADA. This pronouncement could have wide-ranging implications for all hoteliers that serve food, either as a primary or secondary practice. Thus, hospitality operators should evaluate their practices for offering and providing accommodations for food allergies to minimize any potential exposure to disability discrimination charges under the ADA. While there may not be a “one size fits all” solution to this issue, hospitality companies can take prudent steps to ensure that guests with allergies have the ability to fully and equally enjoy the dining services and the social benefits that accompany such services
- Website Accessibility – Online marketing is a key tool for hotels and resorts, and most individuals will review a hotel’s website before booking their stay. Thus, it is critical that hotels position themselves as an ADA-friendly property, with notices about their accessible rooms and amenities. In addition, to the extent hotels allow guest to check room availability or book a stay online, the website must be accessible for individuals with visual and other impairments. The Department of Justice has begun to focus on website accessibility for online retailers, and more individuals are filing civil suits over inaccessible on line services.
Overall, the hospitality industry should continue to be vigilant and proactive in ADA compliance ensuring their property meets accessibility requirements before a civil complaint is filed. Necessary steps include an internal audit and inspection of the entire property to ferret out areas needing improvement, staff training on ADA policies and procedures and how to respond to guest inquiries on the phone or in person, and finally, removing architectural and structural barriers where readily achievable to ensure barriers to access are eliminated.
Our next speech will be at The Lodging Conference in Scottsdale on September 16 where we will discuss "ADA Compliance: Implications for Owners and Managers When Acquiring or Developing New Lodging Facilities."