Department of Justice Issues Final Rule on Web Accessibility and the ADA

On April 24, 2024, the United States Department of Justice (“DOJ”) published its much-anticipated final rule regarding website and mobile app accessibility for state and local governments.  The new rule, which implements Title II of the Americans with Disabilities Act (“ADA”), has specific requirements to ensure that web content and mobile apps are accessible to and usable by people with disabilities.  The new requirements are binding on state and local governments, including school districts, and they apply to web content and mobile apps that a public entity provides or makes available directly or through contractual, licensing, or other arrangements.

New Technical Standards

The DOJ adopted the 2018 version of the Web Content Accessibility Guidelines ("WCAG") 2.1[1] as the technical standard for web content and mobile app accessibility that state and local governments must follow to ensure they meet existing obligations under Title II of the ADA.  The rule further states that public entities will need to comply with the WCAG 2.1 Level AA success criteria and conformance requirements. State and local governments, including school districts, will need to make sure that websites, mobile apps, and other materials – such as digital textbooks -- comply with these standards unless doing so would alter the nature of the services, program or activity offered or cause an undue administrative or financial burden.  Public entities should be aware that these are rigorous standards.

Exceptions

The final rule provides five exceptions, some of which we pointed out in our August 16, 2023 article, in which we discussed the DOJ’s proposed rule. The exceptions include.

• Archived web content;
• Preexisting conventional electronic documents, unless such documents are currently used to apply for, gain access to, or participate in the public entity’s services, programs, or activities;
• Content posted by a third party on the public entity’s website, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity;
• Conventional electronic documents that are individualized and password-protected or otherwise secure; and

• Preexisting social media posts.

Notably, if an exception applies, the public entity need not comply with the WCAG technical standards for that content.  However, upon request from a specific individual, a public entity may have to provide the web content or content in mobile apps to that individual in an accessible format to comply with the entity’s existing obligations under other regulatory provisions implementing Title II of the ADA.

Timeline for Compliance

The DOJ recognizes that small public entities may face challenges implementing the proposed requirements due to limited resources. As a result, the timeframe for compliance varies by population. State and local governments in a county or city with a total population of 50,000 or more must comply with this rule by April 24, 2026, while those with 49,999 or fewer must comply by April 24, 2027.

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[1] WCAG 2.1 means the Web Content Accessibility Guidelines (‘‘WCAG’’) 2.1, W3C Recommendation 05 June 2018, https://perma.cc/UB8A–GG2F.