Attorney General Merrick B. Garland recently signed a final rule under Title II of the Americans with Disabilities Act (ADA) to make certain that the accessibility of web content and mobile applications (apps) for people with disabilities.
The new rule clarifies the obligations of state and local governments to make their websites and mobile applications accessible.
The government explains that websites and mobile apps that aren’t accessible can make it hard or impossible for those with disabilities to access government services. This includes tasks such as ordering mail-in ballots or obtaining tax information which are readily and easily accessible to other members of the public online. Inaccessible websites and mobile apps frequently can prohibit those with disabilities from engaging in civic or other community events. The rule will help make certain that people with disabilities have access to state and local governments’ services, programs, and activities available on websites and mobile apps. It will also provide state and local governments with more clarity about what is required to comply with the ADA.
What Does the New Rule Do?
The rule will set out new standards for addressing a number of barriers, ensuring that individuals with disabilities can access web content and mobile apps and fully participate in public programs and services to improve their day-to-day lives.
The final rule mandates technical standards for state and local governments to help ensure the accessibility of their programs and services provided through the web and mobile apps. By providing clarity on how to make sure these platforms are accessible for people with disabilities, this final rule advances the ADA’s promise of a more inclusive society, the Attorney General says.
WCAG, the Web Content Accessibility Guidelines, is a set of guidelines that say what is needed for web accessibility, such as requirements for captions for videos. WCAG is developed by the World Wide Web Consortium. According to the Department of Justice, WCAG 2.1 Level AA is a widely used and accepted industry standard. It’s been implemented, evaluated, and shown to be a sound and comprehensive threshold for public agencies. Since WCAG 2.1 Level AA was published in 2018, web developers and public entities have had time to familiarize themselves with it.
The WCAG standards were designed to be “technology neutral.” This means they’re designed to be universally applicable to current and future web technologies. These standards let web and mobile app developers have more flexibility and greater innovation potential. The DOJ noted that at least 10 states now use, or aim to use, WCAG 2.1 as a standard for their websites.
The DOJ claims that adopting WCAG 2.1 Level AA as the technical standard will have benefits that are significant to make sure that access is available to those with disabilities to public entities’ services, programs, and activities. For example, WCAG 2.1 Level AA includes success criteria concerning the accessibility of mobile apps or web content viewed on a mobile device.
The rule doesn’t prohibit a state or local government from using designs, methods, or techniques as alternatives to WCAG 2.1, Level AA if the state or local government can prove the alternatives provide the same or more accessibility and usability. The rule refers to this as “equivalent facilitation” and permits this so state and local governments can have a degree of flexibility, while also making certain that people with disabilities have equal access to state and local government web content and mobile apps.
What Government Entities Must Comply with the Rule?
This rule applies to all state and local governments, including any agencies or departments of state or local governments, along with special purpose districts, Amtrak, and other commuter authorities. Plus, state and local governments that contract with other entities to provide public services for them—such as non-profits operating drug treatment programs on behalf of a state agency—must also have their contractors comply with Title II.
Some examples of state and local governments include the following:
State and local government offices that provide benefits and/or social services, like food assistance, health insurance, or employment services;
Public schools, community colleges, and public universities;
State and local police departments;
State and local courts;
State and local elections offices;
Public hospitals and public healthcare clinics;
Public parks and recreation programs;
Public libraries; and
Public transit agencies.
Are There Exceptions for Certain Content?
Yes, there are limited exceptions for some types of content that aren’t as frequently used or that may be particularly difficult for state and local governments to address right away. If an exception applies to certain content, that content would not have to meet WCAG 2.1, Level AA. The types of excepted content are:
1. Archived web content;
2. Preexisting conventional electronic documents;
3. Content posted by a third party where the third party is not posting due to contractual, licensing, or other arrangements with a public entity;
4. Individualized documents that are password-protected; and
5. Preexisting social media posts.
Under the current ADA rules, state and local governments must provide individuals with disabilities with effective communication, reasonable modifications, and an equal opportunity to participate in or benefit from their services, programs, and activities.
State and local governments must ensure that their web content and mobile apps meet WCAG 2.1, Level AA within two or three years of when the rule is published, depending on their population.
“This final rule marks the Justice Department’s latest effort to ensure that no person is denied access to government services, programs, or activities because of a disability,” said Attorney General Merrick B. Garland. “By issuing clear and consistent accessibility standards for state and local governments’ digital content, this rule advances the ADA’s promise of equal participation in society for people with disabilities.”
Bottom Line
Although the new rules apply only to state and local governments subject to Title II, all California employers should be aware that regulations applicable to private businesses subject to Title III may see a similar requirement in the future.
As a result, private businesses should think about reviewing their websites for compliance with the WCAG 2.1 Level AA accessibility standards.