Today’s blog entry, deals with the question of what are the hot issues with respect to the ADA and the lodging industry. As I see it, there are six, but this blog entry will only focus on four of them. Two of those four are encapsulated in 28 C.F.R. §36.302. The four are indemnification agreement, service animals, reservations, and effective communication. The two that are not discussed are wheelchair lifts and the accessibility of hotel Internet sites. Wheelchair lifts we have yet to talk about. The accessibility of Internet sites we have talked about quite a bit in other blog entries. As usual, the blog entry is divided into categories and they are: indemnification agreements; service animals; reservations; thoughts on 28 C.F.R. §36.302(e); effective communication; and conclusions. The reader is free to focus on any or all of the categories.
Hotels are constantly renovating and building out there facilities. Accordingly, the reader will have to be familiar with whether indemnification agreements are kosher. We discussed that question in this blog entry and in this blog entry as well.
Many places of lodging are pet friendly as a service to their customers, but not all are. For those that aren’t, service dogs are a particular hot issue. For places of public accommodation, the service dog rules can be found in 28 C.F.R. §36.302(c). Here are some critical thing to keep in mind.
- If the dog is a service animal, the service animal can still be removed from the premises if either the animal is out of control and the animal’s handler does not take effective action to control it, or the animal is not housebroken.
- A service animal must be under the control of its handler. A service animal must have a harness, leash, or other tether, unless either the handler is unable because of a disability to use a harness, leash, or other tether, or the use of a harness, leash, or other tether would interfere with the service animal’s safe, effective performance of work or tasks, in which case the service animal must be otherwise under the handler’s control (e.g., voice control, signals, or other effective means).
- A public accommodation is not responsible for the care or supervision of a service animal.
- A place of public accommodation cannot inquire as to the nature or extent of a person’s disability. However, they can ask two questions and only those two questions. Those two questions are: 1) is the animal required because of the person’s disability; and 2) what work or tasks the animal has been trained to perform. Even these two questions are not allowed where it is obvious, “readily apparent,” that the dog is assisting a person with a disability. Finally, the work or tasks the animal has been trained to perform must be related to the disability.
- Service animals are dogs, though miniature horses get similar but not exactly the same treatment.
- Service animals can go anywhere where members of the public, program participants, clients, customers, patrons, or invitees, as relevant, are allowed to go.
- A place of public accommodation is not allowed to impose a surcharge on a service animal, though paying for damages is allowed if the hotel imposes such a fee on people who stay at the hotel without service animals.
- While miniature horses get similar treatment, regulations allow for a balancing test. That is, miniature horses get similar treatment after the balancing test is applied. That balancing test involves looking at the following factors: (A) The type, size, and weight of the miniature horse and whether the facility can accommodate these features; (B) Whether the handler has sufficient control of the miniature horse; (C) Whether the miniature horse is housebroken; and (D) Whether the miniature horse’s presence in a specific facility compromises legitimate safety requirements that are necessary for safe operation.
- It is all over the media how people are taking their pets into places where they simply do not belong and passing them off as service dogs. This causes a real problem for people with disabilities with actual service dogs as the service dogs and the person with disabilities are pretty much helpless to deal with the situation. As I see it, there are three problems going on here. First, as mentioned above, if the dog is misbehaving, the place of public accommodation has the right to take action and remove it from the premises. Second, businesses are just not asking the two questions they are allowed to ask. I recognize that the two questions get limited information, and then, you are asking people to decide based on that limited information whether the work or task being performed by the service animal is related to the disability. Nevertheless, asking only those two questions regardless of the answers and taking action against misbehaving animals should go a long way toward discouraging people from using their pets as service dogs.
Reservations and accessibility is governed by 28 C.F.R. §36.302(e), which provides:
1)Reservations made by places of lodging. A public accommodation that owns, leases (or leases to), or operates a place of lodging shall, with respect to reservations made by any means, including by telephone, in-person, or through a third party –
(i) Modify its 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 individuals who do not need accessible rooms;
(ii) Identify and describe 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;
(iii) 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;
(iv) Reserve, upon request, accessible guest rooms or specific types of guest rooms and ensure that the guest rooms requested are blocked and removed from all reservations systems; and
(v) Guarantee that the specific accessible guest room reserved through its reservations service is held for the reserving customer, regardless of whether a specific room is held in response to reservations made by others.
Thoughts on 28 C.F.R. §36.302(e)
- As a deaf individual, I can’t tell you how many times a hotel, and they are generally high-end hotels since that is where conventions are generally staged, doesn’t get deaf accessibility right. Over the last 20 years, I have only found one hotel that got it right when I walked into the room (the St. Paul in St. Paul, Minnesota). Every other hotel is a matter of it taking quite a long time, sometime 2-3 hours, to get it right after I arrive. I always call ahead. I uniformly find out that the reservation people simply do not have a clue as to how to deal with deaf accessibility. So, what I wind up doing is making a reservation with the reservation people, and then I call the hotel directly to discuss my needs. Frequently, the manager simply does not have a clue regarding deaf accessibility. So, I have to explain it to them.
- Once I do ¶ 1, it is hit or miss as to whether the hotel room will be accessible to me when I arrive. I go in figuring that it won’t be and that it will take some work to get it accessible. The crazy thing of it is, is that making a hotel room accessible for me is simply a matter of taking things out of a kit and putting it in the room. I don’t need a mobility impaired accessible hotel room (I don’t like the segregation vibe either). In fact, I am a bit clumsy, and putting me in one of those simply can get in my way. I have found over the years that the engineering staff at the hotels are very helpful and very willing to work it through. They also consistently tell me that it is very rare for them to break out the kits. Even if it is rare, the hotel has to be prepared. So, I certainly am not getting enough information to decide whether a room is accessible when I make the reservation. I also have to do a bit of education with the managers as well. Clearly, this is an area that the lodging industry needs to work on.
The effective communication rule for entities covered by title III of the ADA can be found at 28 C.F.R. §36.303. Here are the things to note:
- Unlike the title II effective communication rule, title III’s effective communication rule does not require that primary consideration be given to the person with disabilities preference for communication. Rather, the ultimate decision is the place of public accommodation’s after consultation with the person with a disability. You would be amazed at how little consultation occurs in such situations. Think of this in the same way as the interactive process under title I of the ADA. The greater the interactive process the better the whole experience is going to be for everyone and the less likely litigation will ensue.
- Auxiliary aids and services must be provided unless either an undue burden (financial), or a fundamental alteration (logistical), exists.
- If the place of lodging is also running a theater (for example, Marriott Lincolnshire has a well-known theater in north suburban Chicago), you want to check out this case.
From dealing with the ADA every day, the hotel and lodging industry has four, and perhaps five or six, critical areas of exposure with respect to the ADA. They are: indemnification/reimbursement agreements; service animals; reservations; effective communication; wheelchair lifts for pools (not discussed); and whether hotel Internet sites are accessible to people with disabilities (such as what we discussed here). There is no substitute for training, which is a large part of my practice, and counsel familiar with the law in this area.