The U.S. Department of Justice’s (DOJ) recent release of an advance copy of its final rule on website accessibility for state and local governments under Title II of the Americans with Disabilities Act (ADA) provides a preview of what is very likely coming for the private sector under Title III and related laws like Section 504 of the Rehabilitation Act of 1973.

Quick Hits

• The DOJ has adopted the Web Content Accessibility Guidelines, Version 2.1, Levels A and AA, as the standard for covered web content.
• The DOJ’s final rule gives most state and local governments two years to bring their websites into compliance.
• The DOJ has created limited exceptions to accessible formatting for archived web content and preexisting PDFs, word processing documents, spreadsheets, and presentation formats (e.g., PowerPoint).
• Compliance with the ADA requires strict conformance with WCAG’s technical standard, except where nonconformance has “minimal impact” on the ability to gain substantially equivalent access.
• Recipients of federal funding covered by Section 504 of the Rehabilitation Act—such as most higher educational institutions and healthcare providers—can expect these same requirements applied to them in the near term.
• Title III public accommodations can expect a similar or stricter regulation when DOJ turns to regulate Title III websites. Meanwhile, Title III entities will immediately confront numerous legal arguments based on DOJ rulemaking.

Background to Rulemaking – Impact Beyond State and Local Governments

The DOJ first announced its intention to regulate in the area of website accessibility in 2010, almost fourteen years ago, and has published guidance materials at various points, but always stopped short of a regulation. So, this regulation has been a long time coming.

Despite the fact that the regulation is limited to state and local governments, we expect the impact to extend to nearly all owners and operators of websites for a variety of reasons. First, as the first detailed, comprehensive regulation in the area of website access, we expect that litigators and courts will inevitably look to it for what is required on website accessibility. Second, because the DOJ is also the regulator responsible for regulating under Title III of the ADA and under the Rehabilitation Act, this Final Rule can be seen as a precursor to what can be expected under those laws for private-sector businesses that are either public accommodations or recipients of federal funding (or both). In particular, the higher education and healthcare industries are filled with private entities that are recipients of federal financial assistance, and those entities can expect the DOJ to soon make this regulation applicable to recipients under the Rehabilitation Act.

Finally, in its substance, there is language in the regulatory commentary that rejects several of the defenses that the private sector has relied upon. So, even though this regulation applies only to the public sector, we expect courts to place heavy reliance on the reasoning and language in the rule to make it harder for private-sector websites to defend their claims.

DOJ Adopts WCAG 2.1, Levels A and AA

The DOJ surprised no one when it adopted the Web Content Accessibility Guidelines (WCAG) as the new conformance standard, largely because there was no other standard. While there was some question as to whether the DOJ would adopt WCAG 2.2, or require entities to comply with whatever updated version of WCAG is released in the future, the DOJ has resolved the question by choosing Version 2.1. The best news is that by choosing 2.1—a standard already updated at the time the regulation went final—is that it suggests that the DOJ will not embrace an ever-moving standard as WCAG continues to be updated (as it likely will be). There was also some question about which conformance level the DOJ would select: Levels A, AA, and/or AAA. Following the vast majority of decisions and settlements entered into in this area, the DOJ has selected Levels A and AA. Please note that particular businesses and particular websites may have “fundamental alteration” or “undue burden” defenses to certain “success criteria” within Levels A and AA, so it makes good sense for a covered entity to look carefully at each of the success criteria to see if any presents particular difficulties for the entity’s business or website.

Two-Year Compliance Period for Most State and Local Governments

Except for smaller governmental entities, the vast majority of governments will have two years from the effective date of the regulation to bring their websites into compliance. This is a significant concession to these governmental entities because their obligation to provide equal access to their programs and services has existed since 1990. The question for the private sector is whether this means that the business sector will also be given two years, or even one year, when the time comes for regulating under Title III of the ADA. Part of the DOJ’s reasoning in providing two years to most governmental entities was that, even if governments knew they had to make their websites accessible, they did not necessarily know the specific standard or success criteria “Levels,” and it would take time to design and alter for those specific standards. There is no way to know how the DOJ will address the private sector, but there is certainly a reasonable expectation that less time will be granted, and quite possibly the DOJ will consider this regulation to be ample notice to the private sector.

Even though these governmental entities have at least two years to make their websites accessible, the DOJ is careful to point out that these entities still have an obligation to provide equal access to their programs and activities during the implementation period.

One question left open by the two-year requirement is whether all claims for lack of website accessibility should fail until that time has lapsed. We will look carefully at how courts answer this question, particularly if the private sector is also granted an implementation period.

Limited Exceptions for Certain Web Content

Although nearly all content on the website is covered, the DOJ did make some important exceptions to that rule. First, several categories of existing content is exempt from accessibility requirements – archived content, and certain kinds of preexisting “conventional electronic documents,” namely PDFs, word processing documents, spreadsheets, and presentation format documents(such as PowerPoint documents). There are several requirements to qualify for these exemptions, but one universal requirement is that these archived or preexisting documents should not be necessary to engage in a current government program, service, or activity.

Archived Web Content

Many websites have a significant volume of archived web content, which does not need to be made accessible. The new regulation, and more specifically 28 C.F.R. § 35.104, defines four requirements for archived web content. “Archived web content” means that the underlying documents or media were (1) created before the compliance date (i.e., two years after the regulation was published in the Federal Register); (2) retained exclusively for reference, research, or recordkeeping; (3) not altered or updated after archiving; and (4) stored and organized in a dedicated area clearly identified as archival. In other words, true archives that are not updated or used for any more current non-archival purposes need not be made accessible.

Preexisting Conventional Documents

The regulation also defines and exempts preexisting “conventional electronic documents,” which are defined to include PDFs, word processing documents, presentation format documents, and spreadsheet file formats. Again, this applies only to documents in existence at the time of the regulation’s compliance deadline, as long as the documents are not later needed or used to apply for, or gain access to, the entity’s ongoing programs, services, or activities. Any documents still needed in the post-compliance deadline period—that is, for current purposes—must be made accessible, even if they are preexisting conventional documents.

Content Posted by Third Parties

There is also an exception in the regulation for third-party website content, which also need not be made accessible, unless that content is there pursuant to contractual, licensing, or other arrangements with a covered entity. So, third party-content posted by users on a government’s social media account need not be made accessible. A covered website can also link to third-party content that is not accessible, such as information about resources, goods, or services available through third parties, provided that the linked content is not needed to participate in the government’s programs, services, or activities. So, for example, a government entity’s links to an online third-party payment processor for making payments to the government entity would be third-party content that would have to be made accessible, but a third-party’s content that talks about available hotels and restaurants nearby would not. Any time the third-party content is present pursuant to the governmental entity’s contracts, licenses, or other arrangements, the content must be made accessible.

Individualized, Password-Protected, Conventional Documents

Conventional electronic documents that are personalized about a specific individual or specific property and not of general interest to users of the government entity’s services need not be made accessible if they are password-protected or otherwise secured. The public entity may, however, need to convert such documents to an accessible format based on a disabled user’s request. The exception just confirms that all of that web content for all users need not be made accessible.

Preexisting Social Media Posts

The regulation also exempts the government entity’s own social media posts, but only those made before the compliance deadline. After that, all of its posts, including its posts of video and other content, must be made to conform to the WCAG standard.

Limited “Minimal Impact” Exception for WCAG Nonconformance

Although the principal provision in the regulation requires technical conformance with WCAG 2.1, Levels A and AA, the regulation allows for nonconformance 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; (c) 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.” (See 28 C.F.R. § 35.205.)

The key to benefiting from this exception is the ability to prove “substantially equivalent” timeliness, privacy, independence, and ease of use of the website while accessing the same functionality of the website.

Fundamental Alteration and Undue Burden Defenses Still Apply

Nothing in the regulation negates these general ADA defenses, so these defenses continue to apply. (See 28 C.F.R. § 35.204.) Thus, if a covered entity can demonstrate that conformance with WCAG may fundamentally alter the nature of the activity, or that doing so is so financially or administratively burdensome, it may excuse the nonconformance. But, consistent with general Title II principles not present in Title III, the public entity must state in writing the basis for using either of these defenses.

24/7 Staffed Telephone Lines Rejected

Although this prohibition does not make its way into the regulation itself, the DOJ does make clear in the accompanying commentary that the use of other means of “effective communication,” such as 24/7 staffed telephone lines, does not create an equivalent service. The DOJ expresses the view that the need to rely on customer service simply cannot present the same ease of use, independence, or privacy protection that website access can provide. As a result, this sort of method for communication cannot substitute for a compliant website.

“Shadow” or “Alternate Conforming” Websites Narrowly Restricted

Similarly, the DOJ generally prohibits the use of “shadow” or “alternate conforming” websites―separate websites that conform to the technical requirements―unless it is due to “technical or legal limitations.” (See 28 C.F.R. § 35.202(a).)

Education and Healthcare Industries More Directly Impacted

The DOJ makes clear in its explanation accompanying the new rule that it intends to apply the same standards to those entities that receive federal financial assistance under the Rehabilitation Act, because, after all, state and local governments generally also receive federal financial assistance.

Certain industries―such as healthcare and higher education―consist of businesses that almost always also receive federal financial assistance. As a result, those industries can expect that the same rules will eventually apply to them.