On April 24, 2024, the U.S. Department of Justice (DOJ) issued a final rule under Title II of the Americans with Disabilities Act (ADA) requiring state and local public entities to ensure that their web content and mobile applications are accessible to persons with disabilities. Most covered entities must comply with the final rule and ensure that their digital content is accessible by April 24, 2026. While these regulations apply directly to public entities, such as public schools and libraries, the regulations also have significant implications for private nonprofits and companies that contract with or provide digital services to state or local public entities. Vendors, contractors, and service providers may be contractually required to meet these accessibility standards and face increased legal and business risk if they fail to do so.
Who Is Covered by the Website Accessibility Regulations?
The Title II Website Accessibility regulations apply to all state and local governments, including any department, agency, or other instrumentality of a state or local government. This includes municipal governments, public schools and universities, public hospitals and health services, and public transportation authorities, just to name a few[1].
The regulations also have significant implications for private entities that work with state or local public entities, including government contractors, vendors, and service providers, because the accessibility requirements mandated by the regulations expressly apply to web content made available by public entities through contractual, licensing, or other arrangements with private entities. To comply with these requirements, public entities will have no choice but to require their vendors to certify compliance with digital accessibility standards and insist on digital accessibility provisions in their service contracts. Depending on the circumstances, this may include stringent compliance, reporting, accommodation, and indemnity provisions.
The Technical Accessibility Standards-What Does Title II Require?
The regulations expressly incorporate, and require covered entities to comply with, the Web Content Accessibility Guidelines (WCAG) 2.1, Levels A and AA. The WCAG are widely accepted industry standards developed by the World Wide Web Consortium, which have been repeatedly referenced and adopted by courts and the DOJ as the prevailing technical standards for digital accessibility. The WCAG 2.1 AA includes 50 distinct success criteria that detail the requirements for digital accessibility of websites, mobile applications, and other digital platforms and content. Key requirements under WCAG 2.1 AA include:
- The ability to navigate the website or platform exclusively via a keyboard, with a visible focus indicator (e.g., ability to "tab" through menus, links, and content without a mouse);
- Alternative text or text alternatives for images, links, buttons, and other non-text content;
- Closed captions for video and audio content;
- Predictable navigation and structure, including appropriate headings and labels; and
- Appropriate color contrast for text and non-text content
The regulations include limited exceptions to WCAG compliance, including for archived web content, certain preexisting conventional electronic documents, and certain content posted by a third party, and where remediation of the accessibility barrier would result in an undue burden or a fundamental alteration in the nature of the service, program, or digital activity. These exceptions are construed narrowly. Covered entities should exercise caution when relying on a potential exception and consult with legal counsel prior to doing so.
The Compliance Deadlines-When Must Web Content Be Made Accessible?
Most covered entities have until April 24, 2026 to comply with the regulations and make their web content accessible. Smaller public entities (with total populations under 50,000) have an extra year to comply-until April 26, 2027. Private companies that work with covered entities are likely to see an increase in the number and stringency of contractual obligations governing digital accessibility in their contracts with public entities.
There is still a possibility that the DOJ may delay the upcoming deadline(s) or implement substantive modifications to the regulations to reduce the burden of compliance. In fact, the DOJ has indicated that it may issue an interim final rule to revise portions of the regulations, and this submission is currently under review at the Office of Information and Regulatory Affairs. In the absence of an interim final rule, however, covered entities and their private partners would be wise to make appropriate preparations for compliance by the April 24, 2026 deadline.
Consequences of Non-Compliance
Covered entities that fail to comply with WCAG 2.1 AA by the applicable Title II deadline risk DOJ enforcement actions and consent decrees, administrative complaints, and private lawsuits by individuals with disabilities, which may include claims for attorneys' fees and costs and, in certain circumstances, monetary damages. If paired with a claim under Section 504 of the Rehabilitation Act, public entities may risk compensatory damages and even loss of public funding. Private entities that work with covered entities may be subject to litigation for breach of contract and indemnity claims, and risk losing government contracts and reputational harm.
Practical Considerations Going Forward
With the compliance deadline fast approaching, covered entities and their private partners should take steps to mitigate risk and ensure the accessibility of their digital content. Depending on your organization, some key steps may include:
- Conducting an appropriate accessibility audit of your digital assets, including both automated and manual testing;
- Remediation of major accessibility barriers and addressing high-risk areas of WCAG non-compliance, as well as implementation of helpful accessibility features, with the assistance of an experienced accessibility consultant (as needed);
- Assessment of potential Title II exceptions that might apply to your digital content, with the advice of legal counsel;
- Review of your organization's contracts with vendors and/or public entities to ensure that they include appropriate digital accessibility representations and provisions to manage risk;
- Training key staff, including web development, IT, sales, and customer service, on Title II accessibility obligations and responding to accessibility requests and issues; and
- Implementing accessibility policies and procedures to ensure compliance with applicable accessibility standards over time, including a public-facing accessibility statement with a means to submit requests for assistance with accessibility issues.
***
If you or your organization have any questions about the Title II web accessibility regulations, Title II exceptions to the regulations, or legal requirements for digital accessibility, please contact the authors of this article.
[1] Many such entities may have already implemented compliance measures within the context of federally funded programs, as similar, but often less prescriptive, requirements can also be imposed as a feature of federal grant funding under Sections 504 and 508 of the Rehabilitation Act of 1973, 29 U.S.C. sections 794 and 794d.