Could Similar Regs for Commercial Websites Be Next?
The Attorney General has signed off on regulations for the accessibility of state and local government websites and apps to people with disabilities, which will take effect once they are published in the Federal Register. While obviously of interest to state and local governments, the regulations may also be of interest to businesses because they are likely to serve as a blueprint for future regulations in the commercial sphere as well.
Overview
The Americans with Disabilities Act (ADA) governs state and local governments (Title II) and private businesses (Title III). Despite pervasive litigation regarding access by disabled persons to websites and apps, there had previously been no federal regulations for online accessibility under Title II and Title III—rather, only regulations for access to federal websites and apps under a different statutory scheme.
That is about to change. The DOJ has finalized online-accessibility regulations under ADA Title II, following the issuance of proposed regulations and a period of public comment last year. Regulations under Titles II and III for accessibility to physical spaces are substantially similar, so with the issuance of regulations under Title II for online accessibility, we expect similar regulations to eventually be proposed for Title III. And in the interim, the Title II regulations are likely to be viewed as persuasive—albeit nonbinding—authority when it comes to disputes regarding online accessibility under Title III.
Key Takeaways
The regulations are discussed below, but here are the key takeaways:
- They apply to any web content or mobile apps that the entity “provides or makes available.”
- They are based on Web Content Accessibility Guidelines (WCAG) 2.1 AA guidelines—which were already the de facto governing standards in the absence of specific regulations.
- There are exceptions for archived web content, preexisting conventional electronic documents, certain third-party content, individualized password-protected documents, and preexisting social media posts. The exceptions are narrow and nuanced and must be fully understood before relying on any of them.
- Entities will have either two or three years, depending on size, to achieve compliance. However, that doesn’t necessarily take the heat off, because the ADA’s broad “effective communications” requirement already mandates online accessibility. The grace period for regulatory compliance is therefore unlikely to deter most Title II online accessibility claims.
- The regulations include a narrow exception where technical non-conformance with WCAG 2.1 AA has only a “minimal impact” on access and still allows for substantially equivalent use.
Summary of Title II Regulations
Governing Standards. The regulations are based on the WCAG 2.1 Level AA, promulgated by the World Wide Web Consortium. The WCAG uses “success criteria” rather than specific coding requirements. WCAG 2.1 AA is already the default guideline for website/app accessibility and is often included in settlement agreements and consent decrees. Although the regulations are not breaking new ground, they do include some minor departures from WCAG 2.1 AA.
Specific Exceptions. The regulations include the following specific exceptions:
- Archived web content. To qualify, the content must be (1) created before the compliance deadline, (2) kept only for reference, research or recordkeeping, (3) kept in a special area for archived content, and (4) unchanged since it was archived.
- Preexisting conventional electronic documents. To qualify, the documents must be (1) word-processing, presentation, PDF or spreadsheet files, and (2) available on the website or app before the compliance deadline.
- Certain third-party content. Third-party content need not be accessible, but this exception would not apply to contractual or licensing arrangements. For example, payment systems, maps, and other content on a site or app that is used to deliver services or benefits must be accessible even if the content is provided by a third party. Similarly, any third-party site or app the entity links to when providing services or benefits must be accessible. In practice, this is a limited exception, and one that somewhat deviates from WCAG 2.1 AA itself.
- Individualized password-protected documents, such as utility bills. To qualify, the documents must (1) be word-processing, presentation, PDF or spreadsheet files, (2) concern a specific person, property, or account, and (3) be password-protected or otherwise secure.
- Preexisting social media posts—i.e., posts made by the entity prior to the compliance deadline.
These exceptions are nuanced. The DOJ has provided an extensive discussion of these and other provisions as part of its issuance of the regulations. Those discussions should be read carefully before relying on any of the regulatory exceptions.
General Exception. There is a general exception in the event of technical non-compliance with the WCAG 2.1 AA technical criteria if the non-compliance “has such a minimal impact on access that it would not affect the ability” of disabled persons to use the web content or app. The entity must show that disabled and non-disabled persons would have substantially equivalent timeliness, privacy, independence, and ease of use and could access the same information, conduct the same transactions, and otherwise participate in the entity’s services or benefits to the same extent. The DOJ emphasizes that this is a fact-intensive analysis, and examples cited by the DOJ—such as a minor shortfall in color-contrast ratios for a visually-impaired person—illustrate just how narrow this exception is intended to be.
Conforming Alternate Version. Under narrow circumstances—where making web content accessible would be impossible due to technical or legal limitations—an entity may provide an alternate version specific for disabled persons. The WCAG allows alternate versions under a broader set of circumstances, but due to “separate but equal” connotations, the DOJ has taken a narrower view and sees this as a last resort.
Protections if Compliant. If the web content and app satisfy the regulatory requirements, the entity need not take further steps to make them accessible to the public. But the entity must still take other steps to enable a disabled person to access programs or services—including content that qualifies for the specific exceptions summarized above—if they are unable to access the content despite regulatory compliance.
Defenses. Under the ADA, accessibility requirements need not be strictly satisfied if doing so would pose an undue burden or fundamentally alter the program or service. Those defenses—which in practice are difficult to establish—would still apply, but accessibility would nonetheless need to be provided to the extent feasible.
Deadlines. Entities serving populations exceeding 50,000 will have two years to comply, and smaller entities will have three years. During that period, the pendency of the regulations serves as a defense to a claim that a site or app does not already satisfy WCAG 2.1 AA. But it is not an all-purpose grace period. Courts have consistently held that web content and apps are already supposed to be accessible under the ADA itself, albeit under less specific criteria. And the DOJ noted that it would not be a defense to such a claim that the entity is currently working on compliance with the regulations.
Additional Considerations
The regulations and DOJ commentary address a number of subsidiary issues, including the following:
- Some states have their own web content/app accessibility regulations. These will be preempted insofar as they provide less protection than the Title II regulations.
- Satisfying the regulations would not negate obligations under any other federal or state regulation that required additional accessibility.
- Reg 508, which governs access to federal web content/apps, is based on WCAG 2.0, a less rigorous standard than WCAG 2.1. Therefore, accessibility that would satisfy Reg 508 would not necessarily satisfy the Title II regulation.
- The regulations do not require testing—how to achieve and maintain compliance is up to the entity—but testing, including manual testing, is advised.
- Entities are encouraged but not required to provide email addresses, accessible links, and other methods for persons to make accessibility inquiries or complaints.
- The DOJ rejected suggestions for a notice-and-cure provision.
- The DOJ confirmed that 24/7 telephone access cannot substitute for web and app accessibility.
The regulations and their exceptions require careful analysis, and we advise consultation with legal counsel when considering or developing a compliance plan.
DOJ Resources for More Information: