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By: Attorney Davis Runde

You may have heard last year that the U.S. Department of Justice (DOJ) issued guidance to governments and businesses open to the public that their websites should be just as compliant with the Americans with Disabilities Act (ADA) as their brick-and-mortar buildings.  

DOJ has now issued a formal proposed rule requiring the same. On August 4, 2023, DOJ published a Notice of Proposed Rulemaking to revise Title II of the ADA “in order to establish specific requirements, including the adoption of specific technical standards, for making accessible the services, programs, and activities offered by State and Local Government entities to the public through the web and mobile apps.”

The purpose of the proposed rule explains that because public entities are increasingly providing their services via websites and mobile apps, those sites and apps must allow all members of the public to be able to utilize those services, including paying fines, applying for state benefits, filing taxes, requesting vital records, etc. Common barriers to these services and website accessibility include poor color contrast, lack of text alternatives to images or captions of videos, and mouse-only navigation. 

Therefore, DOJ is setting forth technical requirements for ensuring that web content made available by state and local governments is readily accessible and usable by individuals with disabilities. These requirements include making websites and mobile apps more understandable and accessible with assistive technology. Essentially, DOJ is seeking to adopt and mandate compliance with a private accessibility standard known as the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA.

In recognition that this may be a significant undertaking for small municipalities, DOJ has proposed two separate compliance dates. If the rule is approved and published, public entities with a total population of 50,000 or more must comply with the WCAG within two years after the publication date, whereas entities with a population of less than 50,000 would have three years to comply with these requirements.

Thus, DOJ has made clear this is a priority for state and local governments. Likewise, based on the guidance provided last year, it is probable that an additional Notice of Rulemaking will be published regarding Title III of the ADA, covering businesses that are open to the public. Examples of these businesses are retail stores, banks, hotels, hospitals, restaurants, and theaters. Already, these businesses are required to provide appropriate accommodations in order to be compliant with the ADA, and it is likely they will be required to provide additional accommodations to make sure their web-based goods and services are equally accommodating. 

Regardless of whether a formal rule is published, it is a good idea to be proactive about changing with the times and technology. Businesses have already been held accountable for failing to make their publicly offered goods and services accessible to all online. For example, H&R Block reached an agreement with DOJ regarding claims it failed to properly code its website to allow individuals with disabilities to access all parts of its services, including a lack of assistive technology, such as screen reader software, keyboard navigation, and captioning. Similarly, Rite Aid reached an agreement with DOJ to address accessibility barriers to their COVID-19 Vaccine Registration Portal. Thus, this issue is certainly on the legal horizon. 

If you are a local government entity or business open to the public and have specific questions about this proposed rule or published guidance, make sure to contact your legal counsel and IT provider in order to best protect yourself. 

Davis Runde is an attorney with Weld Riley, S.C.. Davis is a Wausau native and is a member of Weld Riley, S.C.’s Labor & Employment, Business, and Municipal Law Sections. Prior to joining Weld Riley, S.C., Davis served as an Assistant District Attorney in Marathon County where he was awarded for Outstanding Achievement Supporting Survivors of Domestic Violence.