Winter 2011 Volume 54

Feature Articles

The Weather Outside Is Frightful: So Is The Driving!

Cars may be safer than they were decades ago, and weather forecasting may be more accurate, but winter is still one of the most dangerous seasons for drivers on the road. “Most people don’t realize that the leading cause of death during winter storms is vehicular accidents,” notes EMC Senior Engineer Chris Murphy.

"Despite the technological advances, safe winter driving is still the same old story," advises Murphy. "Prepare your vehicle for winter, take time to slow down, pack a survival kit and know what to do if you get stranded."

Prepare Your Vehicle For Winter

Installing snow tires can have a significant impact on your vehicle’s ability to handle winter driving conditions. All-weather radials can be used effectively in areas that do not receive large amounts of snow or ice. Whether you have snow or all-weather radials, now’s the time to make sure they have adequate tread. While you have a mechanic check the tires, be sure he/she also checks other aspects of the vehicle, including your battery, antifreeze, brakes, wipers, defroster and lights.

The Weather Outside Is Frightful So Is The Driving!

Take Time To Slow Down

The rule of thumb is to allow a two-second following distance between the front of your car and the rear of the vehicle in front of you. In bad weather, add one additional second for every hazardous condition encountered.

Pack A Survival Kit

The Federal Emergency Management Agency (FEMA) recommends a safety kit be kept in each vehicle. FEMA suggests the kit contain a flashlight with extra batteries, a first-aid kit, several blankets, extra newspaper for insulation, a small shovel, bottled water, matches and booster cables.

Stay In Your Vehicle

If you become trapped in your vehicle during a blizzard, FEMA recommends you stay inside. Display a trouble sign by hanging a brightly colored cloth on the radio antenna and raising the hood. To keep warm, run the engine and heater occasionally, about 10 minutes each hour. Watch for signs of frostbite and hypothermia.

"These are the basics," says Murphy. For additional information on safe winter driving, he encourages policyholders to visit the following online resources:

You are in business to serve the needs of your customers and community, rain or shine. But what would happen if your building was destroyed or compromised by a storm? EMC Loss Prevention Information Manager Jerry Loghry shares his perspective on the subject.

Plan For The Worst To Keep Doing Your Best

Start With A Business Impact Analysis

Carefully assess how your organization functions, both internally and externally, to determine which staff, materials, procedures and equipment are absolutely necessary to keep the business operating.

Protect Yourself, Your Employees And The Public

Make sure employees know how to safely evacuate the building if a disaster occurs and how to protect themselves and people in your building. Consider providing CPR and other emergency training. We also recommend you have an updated list of emergency phone numbers, working smoke detectors, fire extinguishers and a disaster kit.

Protect Your Building And Its Contents

If you own the structure, consider disaster-resistant construction practices appropriate for your part of the country. But even if you don’t own the building, it’s vital to protect your building’s contents from damage.

Remember, of all businesses that close down following a disaster, at least 25% never reopen. Unless you protect your organization from natural disasters, you risk losing it altogether. Visit the loss control section at www.emcins.com for a comprehensive list of resources from EMC and the Insurance Institute for Business & Home Safety.

insurance claim form

EMC’s goal is to provide prompt and accurate claim service. The following tips could expedite the claims process.

  1. Protect Your Property-Take whatever actions are necessary to protect your property from further damage, including moving any debris.
  2. Save Receipts-Save all receipts and records to document any temporary expenses.
  3. Document The Damage-Document any damage immediately after the storm through photos and/or videos.
  4. Report The Claim As Soon As Possible-Although the typical time it takes to respond to a claim is the same whether you report it online or to your agent, the sooner a claim is reported, the quicker the call will come from an adjuster.
  5. Keep In Contact With Your Adjuster-You will be contacted by an EMC adjuster within 24 hours of reporting your claim. Get the adjuster’s phone number or email address and contact him/her with any additional questions or concerns.

Small business owners believe the majority of cybercrime is focused on attacking large companies, according to a study sponsored by Visa, Inc. and the National Cyber Security Alliance (NCSA). The findings are surprising, in light of growing concern from security experts and law enforcement that hackers and cyber criminals are honing in on small businesses as their new targets.

Plan For The Worst To Keep Doing Your Best

"The greatest threat to a company’s cybersecurity is complacency," said Michael Kaiser, executive director of the NCSA. "We encourage small business owners to take the necessary precautions to protect their customers, employees and their businesses." EMC loss control experts offer the following simple and inexpensive tips:

  • At a bare minimum, update antivirus software on a daily basis.
  • Use strong passwords that require a combination of uppercase and lowercase letters, numbers and special characters.
  • Keep servers, workstations and security up-to-date to protect against existing and new threats.
  • Install firewalls to block applications from unnecessarily accessing the internet, and block the internet from connecting to your work stations.
  • Enable encryption at the router level using the recommended and authenticated protocols WPA or WPA2.
  • Train your employees about all of the potential security threats your business faces so they are prepared to meet potential security challenges.

Count on EMC® to help protect your business from cybercrime. You’ll find more helpful tips in the loss control section at www.emcins.com.

Report Tells Where And When Cargo Theft Occurs
The National Insurance Crime Bureau (NICB) identified 747 cargo thefts across the nation with an estimated loss value of $171 million. Through careful review of cargo theft incident data, NICB analysts have identified the patterns and locations where most cargo theft occurs. As might be expected, truck stops, parking lots, warehouses and port cities have the most theft activity. The full report is available at www.nicb.org.

FBI Releases New Crime Statistics
The incidence of crime nationwide decreased again, according to the Federal Bureau of Investigation’s Crime in the United States report. FBI Director Robert Mueller says, “The report offers a picture that experts can study, and as a result, produce new strategies or improve current methods of combating crime.” The full report is available at www.fbi.gov.

Zombies Help Promote Disaster Preparedness
How would the Centers for Disease Control and Prevention (CDC) react to a zombie apocalypse? The very same way they would react to any emergency that threatened the health and welfare of the population. That’s the message of a recent posting on the CDC’s Public Health Matters Blog. The posting addresses steps individuals should take to prepare for zombies or hurricanes. Read more about Preparedness 101: Zombie Apocalypse at http://www.cdc.gov/phpr/zombies.htm.

Other Topics

Chris Murphy

"Preventing winter driving accidents should be a companywide safety initiative," says EMC Safety Engineer Chris Murphy. He suggests scheduling a meeting to cover winter driving and make sure drivers and other employees understand the risks and the basic safety recommendations for winter driving. "EMC can augment these meetings in a number of ways," Chris notes.

  • EMC Safety Talks on winter driving safety can be used as a quick refresher for drivers. Search "winter" for titles that include "Are Your Ready for Winter?" "Winter Driving," "Winter’s Coming" and “Winter Driving Tips."
  • Two videos are available from EMC’s online video library—"Winter Driving" and "Winter Driving, When The Rules Change." These 15-minute presentations demonstrate the key techniques for driving in winter conditions.
  • Display EMC safety posters related to winter driving. A poster may be the last thing drivers see before heading out the door and may have an impact on their behavior behind the wheel.

What’s the fastest way to get the safety information you need? Visit the loss control section at www.emcins.com.

Now you can search loss control services by topic and industry, to quickly find the online training, safety signs, videos and other materials that relate to your specific needs. We’ve also added a "New in Loss Control" listing to help you stay on top of our latest loss control offerings.

Count on EMC® to make it easier for you get the information you need to keep your workplace safe.

Insights Online

Schools

After being asked to provide possible ways to improve the safety of the railings located along the front balcony at the performing arts center in a high school, EMC Risk Improvement Manager Mike Duffield offered the following advice to the school’s superintendent:

Even though the railings do appear to meet code, the risk of injury or death resulting from a fall in this area could be reduced by making some alterations. There does not appear to be a perfect solution that provides all the benefits of improved safety without detracting from the visibility, acoustics or aesthetics of the area.

With that in mind, here are some options that could help reduce the risk of a fall from the area:

  1. Increase the height of the guardrails in the seating areas to at least 36 inches.
  2. Clear plastic or glass that complies with the International Building Code standard 2407 could be installed to a height of at least 36 inches across the front of the seating areas.
  3. The front row of seats could be removed from the balcony, and the guardrail height could be increased to a minimum of 42 inches.
  4. The front row of seats could be removed from the balcony, and the walkway where the seats had been could then be blocked off to allow for a new 26-inch-high railing constructed in front of the existing seats.
  5. A platform or net system could be built to extend out from the front of the balcony. This system should be designed by a qualified engineer to restrict any fall over the existing railing to less than 30 inches.

If implemented, any of the suggestions above would need to be designed by a professional engineer and installed by a qualified contractor. Guardrails should be designed to support the intended load, should not have any openings that can pass a four-inch sphere and should not be easy for children to climb.

Does your support staff know what to do in a crisis? Having already created online crisis response plans for administrators and teachers, EMC has introduced an online support staff crisis response plan as well. All three fillable PDF plans can be found in the Loss Control > Schools section at www.emcins.com.

Administration Crisis Response Plan
Support Staff Crisis Response Plan
Teachers Crisis Response Plan

Petroleum Marketers

With the recent reports of credit card skimming, the National Association of Convenience Stores’s payment consultant Gray Taylor provides context and tips to mitigate the likelihood that you are a target.

What Is Skimming?

Skimming is any attempt to acquire the data from a credit or debit card transaction. At its simplest, it is stealing credit card receipts. Today, it often involves placing a small electronic device over a terminal that the criminal later takes back to download card data. In all cases, the thieves need to open your dispenser to place the skimming device(s).

Is Skimming A Particular Problem At Convenience Stores/Gas Stations?

The incidence of skimming at the fuel island is over-exaggerated, as industry data points to retail environments where the consumer gives up possession of the card as the biggest source of skimming. In fact, according to the 2009 Verizon Business Data Breach Investigations Report, the real risk to consumers isn’t retail at all; 93 percent of compromised accounts occurred at breaches within financial institutions. The simple fact is that criminals go “where the money is,” and complicated, site-based hacks of retailers is a high-risk, low-yield proposition.

Consumer Reports Magazine And Other Publications Have Suggested That Customers Use Signature Debit, Instead Of PIN, To Minimize The Risk. Is This Good Advice?

The recommendation that consumers not use their PINs when paying is erroneous at best, and could increase consumer risk of compromise, overdrafts and increases retail prices. Industry data shows that card transactions without PINs have a six times greater chance of being compromised, which is why PIN usage is the de facto standard for world payments. Consumers who choose not to use a PIN are also at risk for overdraft fees that occur when their bank does not remove debit holds from their account in a timely fashion. Signature-based transactions are processed on the antiquated Visa and MasterCard systems that do not process in real-time, versus the instant operation of PIN debit. Not using PIN also increases the cost of the transactions, which is passed back to the consumer. The Federal Reserve Bank of Kansas City documented that a $50 transaction processed with a PIN cost the retailer 49 cents, while the same transaction processed without a PIN cost the retailer 68 cents – a cost difference of 19 cents.

The assertion that “a lot of gas pumps use older technologies, so PIN codes are not encrypted” is totally unsupported by the facts. With the introduction of master session encryption technology in the early 1990s, fuel dispensers have been required by Visa and electronic funds transfer networks to encrypt PINS or not accept PIN debit. In fact, every one of the estimated 6 million fuel dispenser terminals installed today accepting PIN debit encrypts PIN numbers—as has been the case for the past 15 years. The convenience and petroleum retail segment has invested more than $5 billion in payment systems and technology to provide a safe, fast and accurate card payment experience for consumers.

How Can A Retailer Check If Terminals Are Being Skimmed?

Unless you are a trained dispenser technician, you probably can’t tell. We recommend serial-numbered security strips and periodic inspections of them. The idea is to know if the dispenser has been accessed. If a strip is broken, then shut down the dispenser and call in a tech to inspect the pump.

How Can Retailers Minimize The Risk Of Being Skimmed?

Here are three simple steps:
  1. Use serialized security strips over all access doors you wish to protect.
  2. Re-key the locks on dispenser doors that have access to electronic payment data.
  3. Consider investing in anti-breach kits for dispensers. Manufacturers now offer anti-breach kits, which generally notify and shut down dispensers that are accessed without proper security code entry. This can be expensive, but is the ultimate line of defense.

What Should A Retailer Do If There Is An Incident?

  1. Stop the bleeding. Take the dispenser offline to discontinue any more transactions.
  2. Have a tech identify the device, but do not remove or touch it. If there is no device, get it in writing from the tech and restart the dispenser.
  3. Call the police to inspect. Remember, this is a crime scene and the perpetrators are probably doing the same thing to other retailers in the general area. Also, the Secret Service and FBI are frequently involved in large cases; let the police handle this. After the investigation, ask for a dated police report.
  4. You don’t know if any of the cards used at the dispenser have been compromised, so don’t assume that they have been.

Do You Have Advice For Consumers?

  1. Use payment terminals and ATMs at established retail or banking locations, where access to the device is controlled by on-site personnel.
  2. Use a PIN whenever you can; it reduces your risk of compromise six-fold and leads to lower retail prices.
  3. Place reasonable limits on the daily or weekly withdrawals from ATMs.

Even the latest chip and PIN technology currently being installed outside of the United States has proven to be vulnerable to attack. The latest reports of skimming and the recent news of hundreds of company systems being hacked is irrefutable evidence that the United States needs to have a national conversation about payment, identity and access security, and how this country can lead the world to the next generation of data security, instead of following it.

[Reprinted with permission of the National Association of Convenience Stores]

The distraction of using a mobile phone was cited as the probable cause of an 18-wheel semi-truck crash that killed 11 people. In response, the National Transportation Safety Board (NTSB) recommended banning the use of mobile phones by commercial drivers, except in emergencies.

"Distracted driving is becoming increasingly prevalent, exacerbating the danger we encounter daily on our roadways," said NTSB Chairman Deborah A.P. Hersman. "It can be especially lethal when the distracted driver is at the wheel of a vehicle that weighs 40 tons and travels at highway speeds."

At about 5:14 a.m. CDT, on March 26, 2010, near Munfordville, KY, a truck-tractor semitrailer combination unit driven by a 45-year-old male departed the left lane of southbound Interstate 65, crossed a 60-foot-wide median, struck and overrode a cable barrier system, entered the northbound travel lanes, and struck a 15-passenger van driven by a 41-year-old male and occupied by 11 passengers—eight adults, two small children and an infant. The truck driver and 10 of the 12 van occupants were killed.

Investigators determined that the driver used his mobile phone for calls and text messages a total of 69 times while driving in the 24-hour period prior to the accident. The driver made four calls in the minutes leading up to the crash, making the last call at 5:14 a.m. CDT, coinciding with the time that the truck departed the highway.

As a result of this and other accidents, the NTSB issued 15 new safety recommendations to the Federal Highway Administration, the Federal Motor Carrier Safety Administration (FMCSA), the National Highway Traffic Safety Administration , the American Association of State Highway and Transportation Officials, the Governors Highway Safety Association, all 50 states and the District of Columbia. The Safety Board also reiterated two previously issued recommendations to the FMCSA.

A synopsis of the NTSB report, including the probable cause, findings and a complete list of all the safety recommendations, is available on the NTSB website (www.ntsb.gov).

[Source: National Traffic Safety Board]

Contractors

Nail guns are easy to operate and boost productivity for nailing tasks. They are also responsible for an estimated 37,000 emergency room visits each year. OSHA and NIOSH have developed a new guide to help construction employers and workers prevent work-related nail gun injuries.

Nail guns are used every day on many construction jobs—especially in residential construction. They boost productivity, but also cause tens of thousands of painful injuries each year. Nail gun injuries are common; one study found that two out of five residential carpenter apprentices experienced a nail gun injury at some point over a four-year period. When these injuries occur, they are not often reported or given any medical treatment.

Research has identified risk factors that make nail gun injuries more likely to occur, including the type of trigger system and the extent of the user’s training. The risk of a nail gun injury is twice as high when using a nailer with a multishot contact trigger as it is when using one with a single-shot sequential trigger.

A new guide titled Nail Gun Safety—A Guide for Construction Contractors has been developed by the Occupational Safety & Health Administration (OSHA) and the National Institute for Occupational Safety and Health (NIOSH) is for residential home builders and construction contractors, subcontractors and supervisors. NIOSH and OSHA developed this publication to give construction employers the information they need to help prevent nail gun injuries.

The guide highlights helpful information about nail gun injuries, including which parts of the body are injured most often and types of severe injuries that have been reported. Common causes of nail gun injuries are also discussed, and six practical steps that contractors can take to prevent these injuries are described:

  1. Use full sequential trigger nail guns
  2. Provide adequate training
  3. Establish nail gun work procedures
  4. Provide personal protective equipment (PPE)
  5. Encourage reporting and discussion of injuries and close calls
  6. Provide first aid and medical treatment

The guidance includes actual workplace cases, along with a short section on other types of nail gun hazards and sources of additional information. To download a PDF of the full document, visit www.cdc.gov/niosh/docs/2011-202.

[Source: National Institute for Occupational Safety and Health (NIOSH)]

The National Demolition Association is now offering the construction industry access to a powerful online training system with thousands of essential courses validated by industry experts, covering topics like safety and health and environmental and information technology.

The National Demolition Association (NDA) has launched a powerful, user-friendly online training system that offers more than 2,000 eLearning courses to meet the specialized needs of the construction industry. Powered by the courseware management source, Portico Learning Solutions, NDA’s Online Training is available to NDA members and the industry at-large.

“As the leading authoritative voice of the demolition industry, we decided to take the initiative by making these essential courses available to professionals involved in the demolition process in areas such as environmental, health and safety, transportation and IT skills,” said Michael R. Taylor, CAE, executive director of the NDA.

The self-paced interactive online training courses feature a sophisticated course management program that tracks how much of a course has been completed, which sections have been visited and how many modules the user has completed and been tested on. "Users can start and stop courses as needed, while the system remembers for them exactly where they left off," explained Taylor. Once a course is purchased, users can return and review it as many times as they wish during a 12-month period. As users complete each course module, testing takes place and a grade is instantly issued. When all requirements are fulfilled, the system issues a unique certificate of completion to the user.

"As we designed the NDA’s online training system, we wanted to combine the intuitive ease of eCommerce that most people know, with eLearning," Taylor explained. "We also wanted to share the in-depth experience of the demolition industry with other construction professionals by offering extremely valuable courses on topics like fall protection, dealing with bloodborne pathogens and courses with OSHA standardized content vetted by industry experts. In addition to courses aimed at the technical aspects of the construction industry, the educational offering provides courses for every aspect of business management, including IT and business skills, desktop computer skills, medical and legal compliance, human resources training, project management and Six Sigma.

The NDA’s online training portal is found within the NDA Learning Center, a page on the NDA website that has links to the NDA Safety Talks series, the Demolition Safety Manual and the Lead-in-Construction employee training program. Users can navigate to the system by clicking on several topics at the top of the NDA homepage, including "Our Industry/Education," "Safety," and "Public Relations." It can also be reached directly by going to http://www.demolitionassociation.com/onlinelearning.

For more information on the NDA’s online training system or the association, visit the NDA website at www.demolitionassociation.com or call 800-541-2412.

The National Demolition Association is a nonprofit trade organization representing approximately 1,000 U.S. and Canadian companies and many international firms that are involved in the demolition process. Membership includes demolition contractors, general contractors, civil engineering firms, and recycling, landfill and salvage operations. The association’s efforts help members stay abreast of environmental, regulatory and safety matters, keep regulators informed about issues facing the industry, increase public and industry awareness and provide members with networking opportunities and information on the latest technical advances in equipment and services.

[Source: National Demolition Association]

Local Governments

Research has revealed a number of important factors involved in ambulance worker injuries and deaths. The study addressed the layout and structural integrity of ambulance compartments, design of hardware and restraints.

Transportation incidents are the leading cause of work-related deaths in the United States; from 2003 to 2009, an average of almost 1,300 U.S. workers died from roadway crashes each year. The risk is even greater for emergency medical services (EMS) personnel. In 2002, field investigators estimated that the fatality rate for EMS workers was more than two times that of the national average for all workers.

As part of the National Occupational Research Agenda, researchers at the National Institute for Occupational Safety and Health (NIOSH) set out to reduce ambulance crash-related injuries and deaths among EMS workers. Research addressed the layout and structural integrity of ambulance compartments, design of hardware and occupant restraints.

NIOSH research revealed a number of important factors involved in ambulance worker injuries and deaths. For example, field investigators observed that EMS workers often ride on the squad bench without wearing a restraint. This allows them to lean forward, stand up or change positions as needed to reach the patient or equipment, but also places them at a higher risk of striking bulkheads, cabinets, shelves or other occupants during a crash. NIOSH crash tests also revealed the possibility of head injury if a worker’s head strikes the cabinets immediately above or behind them, and noted that vehicle structural failures can be a contributing factor in adverse outcomes of EMS crashes.

Impact
In 2007, NIOSH partnered with the Ambulance Manufacturers Division of the National Truck Equipment Association (AMD-NTEA) and the General Services Administration (GSA) to revise the GSA ambulance purchase specification and the corresponding AMD-NTEA test standards. This included increasing the head clearance for EMS workers above the seating positions, eliminating a significant source of head injury. NIOSH also worked with AMD-NTEA to establish a new crash test methodology technical committee. The committee used NIOSH research to develop a cost-effective test procedure to evaluate how components (the seats, cot and equipment mounts) in a patient compartment would withstand a 30mph frontal impact. This test procedure was published by the Society of Automotive Engineers (SAE) in May of 2010 as a recommended practice and is already being used within the industry to improve ambulance seating and restraints. The team developed a companion document that covers vehicle response in side impact events, which SAE is expected to publish in Summer 2011. The long-term goal is to bring ambulance patient compartments up to the same level of safety found in passenger vehicles.

NIOSH researchers continue to work with AMD-NTEA, GSA, manufacturers and federal agencies on other recommendations to improve occupational safety for EMS workers. Ongoing efforts include creating and validating individual standards for seating and worker restraints, litter and patient restraints, and equipment mounting. These research-to-practice measures and collaborative efforts will improve the safety of EMS crew members in their mission to save the lives of others.

You can download the full research document at www.cdc.gov/niosh/docs/2011-190.

[Source: National Institute for Occupational Safety and Health]

Starting March 15, 2012, all public swimming pools in the United States must be equipped with assisted entry systems, including pool lifts or sloped entries. This will ensure that disabled Americans will be able to enjoy the health and leisure benefits of public pools.

What is ADA?

The ADA is a wide-ranging civil rights law that prohibits discrimination based on disability. Disability discrimination occurs when an employer or other entity covered by the ADA treats an individual with a disability unfavorably or less favorably because she has a disability or a history of a disability. The law requires an employer or other entity to provide reasonable accommodation to an employee or applicant with a disability, unless doing so would cause significant difficulty or expense ("undue hardship"). The Department of Justice (DOJ) is the federal agency charged with enforcing the ADA.

What sections of ADA apply to swimming pools, wading pools and spas?
  • Title II (Public Industry) – Title II prohibits disability discrimination by all public entities at the local and state levels. Examples of Title II entities include school districts, municipalities, cities, and counties.
  • Title III (Private Industry) – Title III prohibits disability discrimination by any place of public accommodation (commercial facilities). Examples of Title III entities include a place of recreation, a place of education, and a place of lodging.

What are the permitted means of access?

Title III (Private Industry) – Title III prohibits disability discrimination by any place of public accommodation (commercial facilities). Examples of Title III entities include a place of recreation, a place of education, and a place of lodging.

What are the swimming pool specific requirements?

Both Title II and III entities are required to provide accessible means of entry for pools. Larger pools (greater than 300 linear feet of pool wall) require at least two means of access and smaller pools (less than 300 linear feet of pool wall) require at least one means of access. When providing only one means of access, it must either be a pool lift or sloped entry (ramp). Wave action pools, leisure rivers, sand bottom pools, and other pools where user access is limited to one area are not required to have more than one means of access provided that means is either a pool lift, a sloped entry, or a transfer system. Catch pools that have a catch pool edge on an accessible route are not required to provide a means of access.

*Note: 1) The ADA recommends that when using more than one means of access, the means be different, i.e., a lift and a transfer wall, and be provided in different locations in the pool. 2) Pool walls at diving areas and areas along pool walls where there is no pool entry because of landscaping or adjacent structures are still to be counted when determining the linear feet of pool wall.

What are the wading pool specific requirements?

Both Title II and III entities are required to provide accessible means of entry for wading pools. Wading pools must have at least one means of access and that means must be a sloped entry (ramp). The sloped entry must extend to the deepest part of the wading pool, but it is not required to provide handrails.

What are the spa specific requirements and how does the ADA apply to portable spas/hot tubs?

The ADA does not distinguish between in-ground and portable spas. Both Title II and III entities that have any type of spa, in-ground or portable, are required to provide at least one―accessible means of entry. The means of access can either be a lift, transfer wall, or transfer system. When spas are provided in a cluster (adjacent to each other) only one spa must provide a means of access.

Do the new requirements apply to both existing and new swimming pools, wading pools and spas (in-ground and portable) that fall under the Title II or III categories?

Yes, the permitted means of access must be provided on all installations no later than March 15, 2012. However, it is highly recommended these means of access be added to both new and existing construction as soon as possible.

Are there service requirements for ADA equipment?

Yes, mandated features must be maintained in working order. The regulations provide a Maintenance of Accessible Feature provision which states that a public accommodation shall maintain in operable working condition those features of facilities and equipment that are required to be readily accessible to and usable by persons with disabilities.

How will these requirements be enforced?

Enforcement will vary from state to state, but does not change the fact this is the law. Direct action against noncompliant facilities may be taken by local building or health officials enforcing state or health building codes that reference the new guidelines. Individuals may also file civil lawsuits against noncompliant facilities. Indirect enforcement can occur when a local government becomes ineligible for a federal grant unless all facilities are in compliance.

How does the ADA affect existing state and local building codes?

Existing codes remain in effect. The ADA allows the Attorney General to certify that a state law, local building code, or similar ordinance that establishes accessibility requirements meets or exceeds the minimum accessibility requirements for public accommodations and commercial facilities. Any state or local government may apply for certification of its code or ordinance.

What financial assistance is available to employers/owners to help them make reasonable accommodations and comply with the ADA?

A special tax credit is available to help smaller employers make accommodations required by the ADA. Information discussing the tax credits and deductions is contained in the Department of Justice's ADA Tax Incentive Packet for Businesses available from the ADA Information Line. Information about the tax credit and tax deduction can also be obtained from a local IRS office, or by contacting the Office of Chief Counsel, Internal Revenue Service.

Where can I learn more about these requirements?

Information can also be found on the Association of Pool and Spa Professionnals’ website (www.apsp.org) and at www.ADA.gov. Manufacturers of products that provide accessible means of entry also have information that can be found on their websites.

Background and History of ADA

The original Americans with Disabilities Act was signed into law on July 26, 1990. The law was divided into five subparts but for the swimming pool and spa industry the relevant sections are Public Entities and Public transportation (Title II) and Public Accommodations and Commercial Facilities (Title III). The original enforcement guidelines did not provide accessibility standards for swimming pools and spas. However, in 2004, the Department of Justice issued enforcement guidelines that included pools and spas. At that point they were just that—guidelines—and not law. In July 2010, the Department of Justice announced its final rule making. The revised regulations were then published in the Federal Register on September 16, 2010 and will take effect on March 15, 2011. Compliance with these regulations will be required no later than March 15, 2012.

Swimming Pool, Wading Pool, and Spa Accessibility

The swimming pool, wading pool, and spa guidelines that are now part of the ADA law are virtually the same for both Public Entities (Title II) and Public Accommodations (Title III) facilities. They stipulate that any swimming pool with under 300 linear feet of pool wall must provide one means of access, and that means must be either a pool lift or a sloped entry. In addition, any pool that has over 300 linear feet of pool wall must provide two means of access, which can be any of the five designated means of access: pool lifts, sloped entries, transfer walls, transfer systems, or accessible pool stairs. The criteria that each of these means of access must meet can be found in chapter 10, section 1009 of the revised ADA guidelines. Wading pools must have one means of entry and that must be a sloped entry. Spas, both in-ground and portable, also must have one means of entry, which can be either a lift, transfer wall, or transfer system. The specific requirements that swimming pools, wading pools and spas must meet can be found in chapter 2, section 242 of the revised ADA guidelines.

Exclusions

There are some exceptions from the accessibility guidelines. Title II facilities can be excluded if they can prove that modifications would significantly alter the historic nature of the building. They could also be excused if they could demonstrate that making such modifications would create undue financial hardship for the facility. Title III facilities can be excluded if they can demonstrate that reasonable accommodations are not readily achievable. However, the Department of Justice has made it very clear that, given the flexibility and cost of a pool lift, it would be very difficult for any entity to escape their responsibility to provide access to a swimming pool.

Enforcement

ADA regulations are enforced directly and indirectly. Most direct enforcement is a result of civil lawsuits initiated by a plaintiff who sues for non-compliance. If the plaintiff prevails, the court usually issues a court order that requires the defendant to remedy the violation, and attorney’s fees for the plaintiff. There are generally no monetary awards provided to the victorious plaintiff. The ADA is also enforced indirectly by requiring compliance prior to receiving licenses, certifications, or grants from prevailing authorities. I{For example, prior to a local government receiving a federal grant, it must provide proof of compliance with a wide array of regulations ranging from environmental mandates to equal opportunity programs to ADA compliance. In addition, in most localities, any new construction or building modification will not receive a certificate of occupancy without meeting all relevant ADA requirements. Many states will adopt the latest guidelines into their state or local building codes.

[Reprinted with permission of the Association of Pool & Spa Professionals]