Title II of the Americans with Disabilities Act (ADA) has long required that services, programs, and activities provided by government entities be accessible to individuals with disabilities. To keep pace with federal, state, and local government’s increasing reliance on online resources to engage with the public, the U.S. Department of Justice (DOJ) has proposed new rules that would set more specific ADA accessibility requirements. If adopted, the rules would require government entities to comply with Web Content Accessibility Guidelines 2.1 AA (WCAG 2.1 AA) for materials they make available to the public online and through mobile applications.
This web content must be accessible regardless of whether the content is on the public entity’s own website or elsewhere on the web. As a result, content that a government entity makes available on a social media platform must also be accessible.
Are there any specific requirements for private companies?
In addition to government-operated websites and apps (as well as a government entity’s social media posts), the proposed rules would also impact third-party web content and apps that the government uses to provide services to the public. Public entities frequently link to third-party websites and apps that members of the public can use to gain access to government programs, information, and services (common examples include: websites to pay parking tickets or taxes, register for benefits, or sign up for classes). Such third-party web content would also need to comply with the new rules.
Are there any exceptions?
The rules would provide for several limited exceptions, including for: (1) archived web content; (2) pre-existing conventional electronic documents (e.g., Word documents and PDFs); (3) content posted by a third party on a government website; (4) third-party content linked from a government website that does not impact the public’s ability to participate/benefit from government services and programs (e.g., links to nearby restaurants and private tourist attractions); (5) certain course content provided by public educational institutions; and (6) individualized and secured password-protected documents (e.g., purchase receipts, personal records, or bills). However, each of these exceptions comes with its own limitations or caveats.
Further, in situations where it is not possible to make affected content directly accessible due to technical or legal limitations (e.g., copyright-protected content), the new rules would allow for the creation of a conforming alternate version of the affected content – i.e., a separate web page that is accessible, up-to-date, contains the same information and functionality as the inaccessible web page, and can be reached through an accessible page or an accessibility-supported mechanism.
To encourage flexibility and innovation (while still ensuring equal access), the DOJ’s rules would also permit the use of alternative methods as long as they offer substantially equivalent or greater accessibility and usability for members of the public.
The rules in their current form would establish a staggered compliance deadline based on the population served by the government entity. Government entities that serve 50,000 or more persons must be in compliance within two years after the publication of the final rule. All other government entities have three years to achieve compliance.
What are the penalties for non-compliance?
The DOJ enforces Title II of the ADA through lawsuits and settlement agreements, which often require the public entity to revise its policies and procedures and, in some cases, pay substantial damages to impacted individuals. The DOJ may also participate in private suits including class actions that it determines may impact the interpretation and application of the ADA.
The public is invited to submit comments on this Notice of Proposed Rulemaking (NPRM) through 3 October 2023.
We encourage you to reach out to your Hogan Lovells counsel to discuss how the new proposed rules may impact your business and if you are interested in filing comments in this proceeding. In the meantime, providers of online products and services that are made available for government use should begin to familiarize themselves with the WCAG 2.1 AA technical standards.
Authored by Mark Brennan and Warren Kessler.