CLIENT ALERT: U.S. Department of Justice Issues Long-Awaited Final Rule on Accessibility of Web Content and Mobile Apps Provided by Public Entities

On April 8, 2024, the U.S. Department of Justice (“DOJ”) issued the Final Rule on the Accessibility of Web Information and Services of State and Local Government Entities. The Final Rule implements new requirements under Title II of the Americans with Disabilities Act (“ADA”) for State and local government entities to provide services, programs, and activities through ADA accessible website content and mobile applications.

The Final Rule builds on previous guidance issued by the DOJ in March 2022, which stopped short, however, of establishing specific technical standards for web accessibility for people with disabilities under the ADA. Now, for the first time, the Final Rule requires the adoption by public entities of the widely accepted industry standard for text, sounds, images, controls and animations that appear in digital content, known as Web Content Accessibility Guidelines version 2.1, Level AA (“WCAG 2.1”).

WCAG 2.1, for example, adds invisible attributes known as alt text or alt tags to images, which help to orient an individual using a screen reader, and allow them to gain access to public information on a government website or mobile app. Among other features, WCAG 2.1 also requires that text be formatted so that it is easier to read when magnified, or that page orientation (i.e., portrait or landscape) not be restricted to just one orientation when displayed on a website or mobile app. Such accessibility features are significant, for instance, for people with disabilities that affect vision or for people who use wheelchairs with a tablet attached to it so that it is unable to be rotated.

At least ten states—Alaska, Delaware, Georgia, Louisiana, Massachusetts, Oregon, Pennsylvania, South Dakota, Utah, and Washington—have already adopted WCAG 2.1 for their official websites. The DOJ also estimates that 109,893 State and local government websites and 8,805 State and local government mobile apps will be affected by the implementation of the Final Rule.

The Final Rule permits a number of limited exceptions for certain types of inaccessible content. These exceptions include: (1) archived web content; (2) preexisting conventional electronic documents, unless those documents are currently used to apply for, gain access to, or participate in the public entity’s services, programs, or activities; (3) content posted by a third party where the third party is not posting due to contractual, licensing, or other arrangements with a public entity; (4) electronic documents that are about a specific individual, their property, or their account and that are password-protected or otherwise secured; and (5) preexisting social media posts.

Public entities can also be excepted from the requirements of the Final Rule if the entity can demonstrate that compliance with WCAG 2.1 would result in a fundamental alteration or would impose an undue financial and administrative burden, which are very high standards, or that the entity’s use of other designs, methods, or techniques as alternatives to WCAG 2.1 provide equivalent or greater accessibility to web or mobile app content. Additionally, a public entity can be deemed to have satisfied its obligations under the Final Rule if, in the limited circumstance, the public entity can demonstrate that its noncompliance has a minimal impact on accessibility to governmental services, programs, and activities.

Another notable provision of the Final Rule is that it also applies to digital content created by private businesses for use by public entities. As detailed in an accompanying fact sheet released by the DOJ, if a city allows people to pay for public parking using a mobile app, for example, that mobile app must adhere to WCAG 2.1, even if the app is developed and maintained by a private business. The Final Rule gives public entities serving a population of 50,000 or more two years to comply with its requirements. Public entities serving a population less than 50,000 have three years to comply with the Final Rule.

HMBR is available to provide specific advice on this regulatory development. Should you have any questions or concerns about possible implications for your entity, please feel free to contact us at 312-946-1800.