DOJ Final Rule on Website Accessibility for State and Local Governments Portends Significant Changes for Private-Sector Websites

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 (or until April 24, 2026) 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 (June 24, 2024) to bring their websites into compliance, or
until April 24, 2026. (Smaller governmental entities will have until
April 26, 2027.) 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.

Next Steps

For more information, please join us for our upcoming webinar, “The DOJ’s New ADA Website Accessibility Regulations: Implications for All Employers,” which will take place on Monday, May 13, 2024, from 2:00 p.m. to 3:00 p.m. (EDT) / 11:00 a.m. to noon (PDT). The speakers, David Raizman and Amber L. Roller, will discuss what public entities and private employers need to know about the final rule. Register here.

Ogletree Deakins’ Disability Access Practice Group will continue to monitor developments and will provide updates on the Disability Access blog as additional information becomes available.

Editor’s Note: This article was updated on April 24, 2024, with
information on dates and deadlines related to the final rule. With the
publication of the final rule in the Federal Register,
the compliance deadline for most state and local government entities
will be April 24, 2026, and will be April 26, 2027, for smaller
governmental entities.