On April 24, the Department of Justice (DOJ) published a “final rule”, applicable to state and local governments, regarding website accessibility requirements under the Americans with Disability Act (ADA).

The consensus, however, is that the rule is a preview of rules that will eventually be applicable to the private sector, as well. Moreover, it is possible, if not likely, that courts will look to the new rule (and its commentary) in interpreting private sector obligations. So, the rule is certainly worth understanding for agencies providing web development services.

What Creative Agencies Need to Know About the Web Content Accessibility Guidelines

The rule is noteworthy, at this point, primarily because it has taken such a long time to adopt this rule, with the Obama Administration first announcing its intent to do so 14 years ago (in 2010)! However, the rule itself is not particularly noteworthy.

In sum, the DOJ has adopted the Web Content Accessibility Guidelines (WCAG), Version 2.1, Level AA, as the standard for covered web content – a framework with which most agencies creating websites are readily familiar.

Effectively, this makes WCAG 2.1 AA the industry standard for web development. If you are a dev shop, you will be expected to comply with this standard unless your contract expressly specifies a different standard.

WCAG Exemptions and Defenses

There are several exceptions to the 2.1 Level AA requirement that are briefly worth noting, as we expect that they will apply to any application to private entities, as well:

Preexisting Conventional Electronic Documents: Word processing documents, spreadsheets, PDFs and slideshows (or presentations) that are on the website prior to the required compliance date are exempt.
Individualized, Password-Protected, Conventional Documents: Even if not preexisting, conventional electronic documents that are personalized (and not of general interest to users of the government services) need not be made accessible if they are password-protected or similarly secured (though the public entity may, be required to convert such documents to an accessible format on a disabled user’s request).
Content Posted by Third Parties: Content posted by users and content available via a link to a third-party site (such as goods or services offered by third parties) need not be compliant. However, if the third-party site is necessary to enable the user to participate in the government program or service being offered (e.g., a payment processor), then it must be compliant.
Preexisting Social Media Posts: Social posts made prior to the compliance deadline are exempt, but posts made after the compliance deadline must be fully compliant.

There are also several potential defenses to noncompliance that are worth noting for the same reason – that they should be applicable to any implementation of this rule for the private sector (as they are for the public sector). All of these potential defenses, however, are highly subjective and fact-based. So, it is best not to be in a position of having to rely on one of them, at least not without a thoughtful analysis of the potential application to the particular website. Note that these are exemptions that the website publisher may use. These are not exemptions for a development shop.

Minimal Impact: The applicable regulation allows a nonconformity where it has “such a minimal impact on access that it would not impact the ability of individuals with disabilities to use the public entity’s web content or mobile app to do any of the following in a manner that is substantially equivalent in timeliness, privacy, independence, and ease of use: (a) access the same information as individuals without disabilities; (b) engage in the same interactions as individuals without disabilities; © engage in the same transactions as individuals without disabilities; and (d) otherwise participate in or benefit from the same programs, services, and activities as persons without individuals without disabilities.” (28 CFR § 35.205.)
Fundamental Alteration: If a covered entity can demonstrate that conformance with the 2.1 Level AA standard may fundamentally alter the nature of the activity the website provides, compliance may not be required.
Undue Burden: If a covered entity can demonstrate that compliance with 2.1 Level AA would be “unduly burdensome” (from a financial or administrative standpoint), it may excuse the nonconformance.

For the time being, while it is worth understanding, the DOJ’s new rule does not materially impact recommended practices for digital agencies.

If you have questions about the new rule, Matchstick can help.