DOJ issues new Title II regulations
Last month, the Department of Justice completed the rulemaking process clarifying how the ADA applies to local and state government websites and mobile apps. This is a big deal. The DOJ first announced its intention to create web accessibility rules back in 2010 and there have been quite a few starts and stops in the 14 years since. While the DOJ has always maintained that public sector websites are required to be accessible, it hadn’t provided clear guidance on what requirements those sites needed to meet.
But now the process has finally concluded and there are unambiguous web accessibility standards with the force of law! The rule affirms that all government entities covered under Title II of the Americans with Disabilities Act must make web content and mobile apps accessible by meeting a minimum technical standard.
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Why is accessibility important for government bodies?
Of course, accessibility is important for everyone. But as we’ve argued in the past, government bodies have a special duty to ensure digital accessibility. Citizens and residents expect to be able to access public information and government services online (and this is even more true in the post-COVID era). This means that government bodies must ensure that everyone, including those with disabilities, can participate equally.
Who does this apply to?
Title II of the ADA applies to all state and local governments. This includes all government agencies or departments along with organizations or companies that the government hires to provide public services. Some examples include:
- Police departments (state and local)
- Courts (state and local)
- Election offices
- Public hospitals
- Public schools
- Public universities and community colleges
- Public libraries
- Towns, cities, countries and school districts
- Public transit agencies
When does this rule apply?
While there is an existing presumption that digital content and mobile apps are subject to accessibility requirements under the ADA, these specific rules do not go into effect immediately. Depending on the size of the local or state government population, the rules go into effect in either 2 or 3 years. Entities with a population greater than 50,000 people must meet the minimum technical accessibility standard beginning 2 years after the rule is published.
However, that doesn’t mean agencies should wait until the last minute. DOJ has pursued cases against state and local governments in the past and these new rules do not change the fact that the ADA has required web accessibility since 1990. We’re not lawyers but this additional clarity provided by the DOJ rules should not be interpreted as license to delay complying with the law.
What is the minimum technical accessibility standard state and local governments must meet?
The Web Content Accessibility Guidelines (WCAG) version 2.1 Level AA is the technical standard that must be met. Note that this is not the most recent version of WCAG. Government entities are allowed to meet a higher standard (e.g. Level AAA) or a more up-to-date standard like WCAG 2.2 (or WCAG 3.0 in the future).
What content on government websites and apps does this apply to?
This applies to all content available on websites including text, images, sound, videos and documents. Documents can include PDFs, Word documents, spreadsheets and Powerpoint (or other presentations).
When the government contracts with a third party provider for public-facing software or apps (e.g. a public parking payment app or Zoom), that functionality must also meet the same accessibility requirements.
Are there any exceptions?
The rules recognize that local and state governments should prioritize making the most important content accessible quickly. With that consideration in mind, the DOJ rules allow for certain types of content that may not be subject to the minimum technical standards. However, people with disabilities are still entitled to receive the content in an accessible format if they need it. In other words, the government is obligated to produce an accessible version after the fact if someone requests a copy.
The major exceptions are:
- Archived content that was created before the rule was in place, will not be changed or updated, and is kept in a special area for archived content for reference purposes only.
- Preexisting PDFs or other documents that were available online prior to this rule going into effect. However, if that document is still used (i.e. a PDF of a business license application), it must still meet the technical standards.
- Third party content produced by members of the public such as comments on an online message board
- Personal documents that are password protected (such as an individual citizen’s tax bill)
- Preexisting social media posts. (However, going forward all social media posts must meet the technical standard.)
What if there are technical or legal limitations that prevent content from being made accessible?
In those cases, governments can create a “conforming alternate version” of the content that is maintained alongside the main version. This is generally discouraged because forcing users with disabilities to access content from a different location places a burden on them. It also increases the chances that the alternate version may be out of sync or outdated.
Do these rules apply to the private sector too?
Vendors or agencies that are selling or licensing technology to government bodies (or creating it as work for hire) are subject to the same minimum technical accessibility standard of WCAG 2.1 Level AA. Government procurement officers must insist on a VPAT that documents the accessibility current state.
Otherwise, the DOJ rules are silent on minimum technical accessibility standards for public accommodations. DOJ has previously announced its intention to start a rulesmaking process for the private sector (also in 2010) so that may happen in the future. In the meantime, there is ample legal precedent that Title III of the ADA applies to websites as public accommodations (with conflicting precedent as to whether web-only businesses qualify as public accommodations). WCAG 2.1 Level AA has been widely acknowledged as the relevant standard in most federal court decisions related to web accessibility.
