ADA Compliance for your Property and Website Please be respectful of your colleagues by silencing your phone. If you need to answer a call, please go to the hallway.

The ADA – Public Accommodations ADA Has Broad Scope: Title I Equal Employment Opportunities for Individuals with Disabilities Title II Public Services Title III Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities Title IV Telecommunications Title V Miscellaneous

The ADA – Public Accommodations 42 USC § 12182 - Prohibition of Discrimination by Public Accommodations: No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.

The ADA – Public Accommodations The Title III Requires: Private businesses to accommodate disabled patrons who visit their property by removing barriers to their goods and services, if such removal would be “readily achievable.” “Readily achievable” means easily accomplishable and able to be carried out without much difficulty or expense. This is generally determined by looking at the nature and cost of barrier removal in context of the financial resources of the business.

The ADA – Public Accommodations Does the Federal ADA Apply to Me? Place of Public Accommodation = A Place of Lodging except: 5 or less rooms for rent or hire; and Occupied by the proprietor as residence Historical Properties are not exempt from the ADA. [National Register of Historical Places] Congress established alternative requirements for properties that cannot be made accessible without "threatening or destroying" their significance. State Law & Local Laws May Apply – Ohio disability law considered broader than ADA. Ohio Revised Code Section 4112.16 (3/20/19)

The ADA – Public Accommodations Title III Requires: Lodging properties made accessible Modifications in policies, practices and procedures Effective communication and auxiliary aids – at no additional charge Generally required to remove barriers to access when readily achievable Websites that are accessible to people with disabilities

The ADA – Public Accommodations The requirements and standards have been in effect for 28 years 1991 standards vs. 2010 standards 2010 standards - effective dates 3/15/12 and 1/31/13 (pools)

The ADA – Public Accommodations Previous Confusion and Consternation? Safe Harbor – construction prior to March 15, 2012 New Elements in 2010 ADA Standards – no safe harbor – no grandfathering – no no no.

The ADA – Public Accommodations New Requirements under 2010 Standards: Swimming pools Saunas and steam rooms Fishing piers Play areas Exercise machines Golf facilities, miniature golf facilities Shooting facilities with firing positions Recreational boating facilities 

The ADA – Public Accommodations

Public Accommodations Pools & Spas Swimming Pools Less than 300 ft of wall - pool lift or sloped entry 300 ft or more of wall - two accessible means and at least one must be a lift or sloped entry Spas Either a lift transfer wall or transfer system Wading Pools One sloped entry – if readily achievable

The ADA – Public Accommodations Pool Accessibility

Public Accommodations Pools & Spas The DOJ's position on portable pool lifts: Common error to assume portable, as opposed to fixed, lifts comply. Should be fixed, unless not readily achievable   Pool lifts need to be installed at each pool during all operating times and be independently operable by disabled persons Pool lifts must be "fixed" unless the operator can prove that doing so would not be "readily achievable," as defined in the ADA, in which event, a portable lift meeting all of the ADA Guidelines could be used Accessible lifts cannot be shared between a pool and a spa, each would seem to require a separate device Pool lifts must be properly maintained and in good repair with any battery components charged for use Staff must be trained in the use and safety of pool lifts

Public Accommodations Service Animals 2010 Guideline Changes Relating to Service Animals 2010 – Narrowed to dogs and miniature horses as service animals – comfort animals are out Defines "service animals" to include individually trained dogs which assist their owners with physical impairments: Guiding the blind Alerting the deaf Pulling wheelchairs Providing seizure alerts Calming a person with Post Traumatic Stress Disorder (PTSD) during an anxiety attack (distinguished from a "comfort" animal). Service animals are not pets

Public Accommodations Service Animals The ADA Regulations Regarding Miniature Horses: Individually trained to do work or perform tasks for people with disabilities  Must modify policies to permit miniature horses where reasonable Factors to consider if miniature horses can be accommodated: Whether the miniature horse is housebroken; Whether the miniature horse is under the owner's control; Whether the facility can accommodate the miniature horse's type, size, and weight; and Whether the miniature horse's presence will not compromise legitimate safety requirements necessary for safe operation of the facility

Public Accommodations Service Animals Impermissible to Exclude Service Animals Applies in all 50 states Applies to all types of public accommodations, including all "places of lodging" Preempts state and local laws Can: Ask if an animal is a service animal and what tasks the animal has been trained to perform Require owner to maintain control Can exclude if dangerous or disruptive Should: Have a written policy Train employees   Don’t: Require certification or ID Don’t require proof of disability

Public Accommodations Mobility Devices Hotels (Public Accommodations) Must: Allow manual or power driven wheelchairs in any area open to pedestrian use; and Have reasonable policies, practices or procedures to permit the use of “other power-driven mobility devices” by individuals with mobility disabilities.

Public Accommodations Mobility Devices Hotel Should Establish Policies to Safely Accommodate Guests Who Use Other Power-Driven Mobility Devices and Consider: Type, size, weight, dimensions and speed of the device Volume of pedestrian traffic Facility's physical condition, occupation density, placement of furniture or furnishings; availability of storage for the device if requested by the user; Whether limitations can be established to permit the safe operation; and Whether the use creates a substantial risk of serious harm to the immediate environment or natural or cultural resources.

Public Accommodations Reservations made by places of lodging must: Allow people with disabilities to make accessible room reservations in the same way as able- bodied guests (online, over the phone, etc.). Describe the accessible features of a guest room in enough detail so that people can determine if the room will meet their individual accessibility needs. Hold accessible rooms for reservation by guests with disabilities until all standard rooms of that class or type are sold. Remove an accessible room from inventory as soon as it has been reserved; overbooking of ADA rooms is prohibited. Guarantee that the customer receives the specific accessible guest room or guest room type he/she reserved. This covers bed type, number of beds, bathroom fixtures, etc. 28 CFR §36.302.

Enforcement & Drive-By Litigation Title III is Enforced By: Department of Justice Private litigants/advocacy groups

ADA Title III Lawsuits Remedies: Injunctive Relief Attorney’s Fees No money goes to the plaintiff

Enforcement & Drive-By Litigation Private Advocacy Groups: Disabled Patriots of America, Inc. Access 4 All Standard Tactics: Disabled person is dispatched to businesses specifically to find problems The lawyers file cookie cutter and technical complaint for injunctive relief Suits often filed without notifying the business first Request early inspection of the facility by their expert Attempt to settle early in the litigation and collect the expert and attorney’s fees

Examples of Repetitive Allegations From Recent Drive-by Complaints “There are no accessible routes from parking areas.” “Where posted, signage at some of the designated accessible parking spaces are not mounted at sufficient heights.” “There are protruding objects present throughout the facility.” “The rooms designated for disabled use provide elements with controls and/or dispensers outside of the required reach ranges.” “Compliant grab bars are not provided in the restrooms.” “The mirrors above the lavatories are too high.”

Enforcement & Drive-By Litigation Possible Defenses: Mootness The plaintiff if not disabled? Standing? De Minimis? Failure to meet burden of proof? Bad faith tactics? Most cases - Fix and Settle

Advice Self-audit Fix it now Don’t over fix – becomes remodeling with additional obligations

New Waive of Surf-By Litigation The hotel and lodging industry has long been a target of Americans with Disabilities Act litigation. To no surprise, the industry has been hit hard by the latest wave of ADA litigation involving website accessibility, or so-called “surf-by” litigation (coined because someone simply visits a website to search for potential barriers to access).

New Waive of Surf-By Litigation

New Waive of Surf-By Litigation

New Waive of Surf-By Litigation Many people with sight or hearing disabilities use computer programs and other technology in order to access on-line and business website content. A typical program will convert photos and text to speech for those with visual impairments, and close captioning of on-line music and video content for the deaf. In order to permit this, business websites should include embedded code to provide this extra on-line information.

New Waive of Surf-By Litigation

New Waive of Surf-By Litigation Typical Claims: Website failed to use various screen-reader-friendly features Website is not compatible with the Web Content Accessibility Guidelines (WCAG 2.0) which is now the de facto standard for most website developers On-line videos do not contain closed captioning Photographs do not contain embedded text descriptions Links on the website are signified by a different color text only Website does not allow option for text to be increased in size without losing content Website does not permit use of the keyboard to navigate if the user is not able to use a mouse Photographs depict physical barriers to access or clear violations of the 2010 standards (i.e. pool photos).

What to do? Audit your website to ascertain what potential barriers to access may be present.  Pay close attention to your online reservation services given that there are specific Title III ADA regulations addressing this. Learn about the prevailing industry guidance on website accessibility, known as the Web Content Accessibility Guidelines (WCAG) 2.0 AA, and the recently- published WCAG 2.1. Consult with counsel and technologists on best practices for web and mobile app accessibility. Develop and implement a web and mobile app accessibility plan. Review your vendor contracts and consider adding or supplementing provisions on indemnification and representations and warranties Don’t post photos of guideline violations.

Final Questions Samuel Lillard Joe Savarise, CTA Rob Fulton, CAE Attorney at Law Executive Director Ohio Hotel & Lodging Association CEO - Association of Independent Hospitality Professionals (AIHP) Fisher & Phillips LLP 250 West Street, Suite 400, Columbus, Ohio 43215 692 N. High St. Suite 212 P.O. Box 126639 – (614) 453-7612 Columbus, OH 43215 (614) 832-7872 Harrisburg, PA  17112 slillard@fisherphillips.com Cell - 717-433-6813 - AIHP - 844-317-9632 joe@ohla.org  | rob@independent-innkeeping.org Thank you for learning with us! Please complete your evaluation and hand it to the room host before leaving the room!