The United States Department of Justice (“DOJ”) has released a proposed rule to revise regulations implementing Title II of the Americans with Disabilities Act (the “ADA”) to establish specific requirements to make services, programs, and activities offered by state and local government entities to the public through websites or mobile apps (the “Proposed Rule”). This article provides a summary of the provisions of the Proposed Rule and its potential impact on municipalities. The complete proposed rule can be found at https://bit.ly/3rTj3D6.
The Proposed Rule would require public entities, including local governments, to ensure that web content and mobile apps are readily accessible to and usable by individuals with disabilities. The Proposed Rule would adopt the Web Content Accessibility Guidelines (“WCAG”) Version 2.1, Level AA as the technical standard for state and local government websites and mobile apps. WCAG are written by the World Wide Web Consortium, which is the main international standards organization for the World Wide Web. The WCAG Version 2.1 guidelines can be found at https://bit.ly/45zRaxF.*
If a final rule is issued, local governments would need to work with web developers to conform their websites and any mobile apps to the new accessibility standards. For example, WCAG Version 2.1 Level AA requires text to be resized up to 200 percent without loss of content or functionality,** so it is easier to read when magnified. This would help people with low vision read the content of public entities’ websites without using separate magnifying tools. The goal of the new accessibility standards for websites and mobile apps is to ensure that individuals with disabilities have equal access to services, programs, and activities from states and local governments.
In addition to requirements for public entities’ websites and mobile apps, the Proposed Rule would also require public entities to make web content accessible even if it is located elsewhere on the web, such as a social media platform. Local governments would need to comply with accessibility requirements when it posts information on its social media accounts. Public entities are not able to change the accessibility features of the platform itself, but it would need to make sure the content it provides is accessible. For example, if a local government posts a video on its Facebook page, it would need to allow viewers to add captions. Currently the Proposed Rule does not include an exception for preexisting social media posts, but the DOJ is considering adding an exception for social media posts that were posted before the effective date of the final rule. However, if the DOJ does not add that exception to the final rule, local governments would need to go back through their old social media posts and ensure that they meet accessibility requirements.
Generally, public entities would be required to comply with accessibility standards for their web content and mobile apps unless the public entity could demonstrate that compliance would result in a fundamental alteration of a service, program, or activity or in undue financial and administrative burdens. However, the public entity would bear the burden of proving that compliance would result in alteration or burdens. If compliance would result in alteration or burdens, the public entity would still need to ensure, to the maximum extent possible, that individuals with disabilities would be able to receive the benefits or services provided by that public entity.
The Proposed Rule includes the following specific exceptions that may be relevant for local governments:
- Archived web content;
- Preexisting conventional electronic documents;
- Web content posted by third parties on a public entity’s website;
- Third-party web content linked from a public entity’s website; and
- Conventional electronic documents that are about a specific individual, their property, or their account and that are password-protected or otherwise secured
There are some limitations for each exception, and if a limitation applies to an exception, a local government would need to make sure that the web content complies with the Proposed Rule’s accessibility requirements. In addition, even if an exception applies with no limitation, if a specific individual requests web content or content in mobile apps in an accessible format, the local government would need to provide that content in an accessible format to that individual.
If a final rule is issued by the DOJ, it is very unlikely that compliance would be required immediately. The Proposed Rule would require compliance for public entities with a total population of less than 50,000 within three years after publication of the final rule, and compliance within two years after publication of the final rule for public entities with a population of 50,000 or more.
Although the DOJ has not yet issued a final rule, municipalities should be aware that specific accessibility requirements for their website are on the horizon, and that their websites, web content on third-party platforms or pages, and mobile apps may have to be altered in the near future.
We will continue to monitor the developments surrounding the status of the Proposed Rule. Should you have any questions as to the specifics of the Proposed Rule or the potential effect on your municipality, please contact one of our municipal attorneys.
*The WCAG Version 2.1 is incorporated by reference into the Proposed Rule, but it is not restated in the Proposed Rule. WCAG Version 2.1 can be found on the World Wide Web Consortium’s website, which also includes links explaining how to meet the guidelines.
**See WCAG Version 2.1, https://bit.ly/3tCXpDN.