A lot is happening in the US legislative and international regulatory space right now around accessibility. Not surprisingly, many of these actions were timed to the US’ ADA anniversary. It can be overwhelming. Here are some of the things my colleagues and I are monitoring for you right now and our take on what they mean to you or your business:
In the United States
The Biden Administration has announced in their ADA Anniversary proclamation that they will be establishing accessibility standards for state and local governments’ web and mobile app-based services. This is aimed at addressing the current challenges in web and mobile-based services such as voter registration, filing taxes, applying for social services, registering for vaccines, getting information on public transit, and taking online courses.
The Justice Department issued the proposed rule via the Federal Register. Next, it will be open for review by stakeholders and the public. The Justice Department is then expected to issue a final rule that will lay out clear standards for public entities to comply with.
While this initial push is focused primarily on state and local governments (Title II of the ADA), the writing is on the wall. We should anticipate that the DOJ could lift and shift these ‘clear requirements’ into the other Title areas of the ADA—including defining the requirements (and providing better definition of applicability) for retail and informational public-facing websites.
If this moves forward as projected, there will be a seismic shift from accessibility being a market differentiator to it being a market eliminator in key markets. Gone will be the days of accessibility being a chargeable option at digital firms to being a core requirement—with proof—built into every contract and scope of work document.
States Are Getting in on the “Act”
Prior to the recent DOJ announcement, states have been taking independent action Some highlights are:
- Rhode Island Senator Ujifusa and Representative Vella-Wilkinson have introduced bills 2023 H-5106 (PDF) and 2023 S-0105 (PDF) which would require all new, publicly-available websites to comply with the ADA’s web accessibility guidelines before launch. Existing websites would have until January 1, 2028, to comply with the guidelines. State officials will be responsible for ensuring compliance.
- Nevada passed bill AB252 (PDF) this year, which requires the Museums and History division of the Department of Tourism and Cultural Affairs to develop and maintain a public-facing website for all institutions in the Division and ensure that the website is accessible to persons who are blind or visually impaired; authorizing the Division’s administrator to require every institution’s director to establish procedures that their exhibits are fully accessible to persons who are blind or visually impaired. It also requires the Legislative Committee on Senior Citizens, Veterans and Adults With Special Needs to study and report on any existing issues that limit access to persons with disabilities during the 2023-2024 interim.
- Minnesota has introduced bill HF 480 that would provide funding to the Minnesota Council on Disabilities for training, assistance, and support to cities and counties to meet website accessibility standards. It would also require annual reporting on the numbers for website accessibility training, technical assistance, and outreach, as well as estimated costs to make recommended changes to city and county websites.
- Hawaii passed HB1419 that had a very recent deadline: By July 1, 2023, each state entity shall review the accessibility standards (which were to be defined by January 1, 2023) and make revisions to existing procurement and development rules, policies, and procedures under its control to incorporate the standards.
- Massachusetts made an ADA anniversary announcement that it has introduced a Digital Accessibility and Equity Governance Board via Executive Order. The Board has been tasked with establishing and maintaining digital accessibility and equity standards, guidelines, and policies; ensuring the adoption of the same across state agencies; the development of strategies and platforms to promote digital accessibility and equity best practices; developing (in consultation with other executive branch offices and agencies) procurement policies, contractual standards, and related documents to promote digital accessibility and equity; and considering/recommending federal funding opportunities for these priorities. It is further charged with developing and implementing the mission, vision, and guiding principles, metrics, and reporting, and establishing new and continuing education. Further, it is expected to extend the Whole of Government Approach to Additional Governmental Offices such as independent agencies and authorities, public institutions of higher education, other constitutional offices, the judiciary, and other public entities to adopt policies consistent with those advanced by the Board.
Federal, state, and very commonly, municipal governments outsource a significant amount of IT work to public companies. So, IT services companies—small, medium, and large—should start gearing up to ensure they are producing WCAG conformant digital products with evidentiary proof and conformance documentation, such as VPATs, to support their claims. Read Understanding Your VPAT (Voluntary Product Accessibility Template) for broader details on this.
Everyone should be anticipating some form of digital accessibility program reporting and additional questionnaires similar to the August 11, 2023, deadline for Section 752 requirements under the US Federal Section 508 accessibility rules if they want to be a contract supplier to any level of government.
CVTA Was Reintroduced
Senator Markey and Representative Eshoo have reintroduced the Communications, Video, and Technology Accessibility (CVTA) Act. The objective of this legislation is to extend the 2010 21st Century Communications and Video Accessibility Act (CVAA) to more modern technologies such as video conferencing. This will ensure individuals with disabilities have equal access to today’s communication platforms and services they need to participate in professional, educational, recreational, and civic spaces.
Several industries are affected by this legislation: those making audio and video players, video streaming purveyors, communication technologies (including those that enable 9-1-1 service), virtual reality, etc. While this gains traction, we recommend you ensure your requirements are clearly communicated in vendor requirements, Master Service Level Agreements (MSAs,) Scopes of Work (SOW) and/or contracts, as well as in RFP/RFI and Mergers & Acquisitions (M&A) processes.
Meanwhile Over at The DOT
The US Department of Transportation has made significant strides with recent announcements—much of which has been tied into the recently passed FAA Reauthorization:
- New accessible airline lavatory requirements
- Accessibility infrastructure investments at airports and rail terminals
- Starting the groundwork for a potential rule that would enable passengers to stay in their own wheelchairs when they fly.
- Rules that would require better training for airline staff who physically assist passengers with disabilities or handle battery-powered wheelchairs or scooters.
- Work related to vehicles of the future—including automated vehicles, electric vehicles, and associated charging infrastructure—being designed inclusively.
We anticipate these changes will have ripple effects in the digital world as the physical changes start rolling out over the next several years. Expect changes to user interfaces (UI) on electric vehicle charging stations and inside vehicles of all types, websites and mobile apps helping consumers identify which terminal (rail or airport) and/or which aircraft are compatible with the new requirements. New content will be required to train staff to understand and support these changes, as well as to be able to support people with disabilities inclusively. By the way—all this content will have to be digital and accessible as well.
On The Flip Side:
Kansas is in the news for a different type of legislation. Effective July 1, 2023, The Act Against Abusive Website Access Litigation will allow resident businesses to sue ADA website plaintiffs and their counsel over “abusive” litigation to recover defense fees and potentially punitive damages. The litigation can commence in any jurisdiction. This Kansas law will sunset if and when the DOJ issues website accessibility regulations.
While this legislation only applies to resident Kansas businesses, the lesson for ALL businesses is to ensure that, if you receive a demand letter, work quickly to respond and make good faith (and provable) attempts to cure the alleged violation as this is one key measurement of whether the litigation is considered “abusive.” Be proactive by having your legal teams and accessibility programs be part of consumer complaint monitoring and tracking, while working and communicating well with customers right away—during the complaint phase—rather than during the demand or litigation phase.
Another State Heard From
California’s Assembly Bill 1757, which has advanced to the State’s Senate, is focused on internet website liability. It feels as if all eyes are on this legislation as many different industries are monitoring what final wording will make it into law–if it makes it into law. It can potentially affect intrastate commerce and, more personally and pointedly, individual web developers directly. In the most recent wording, it’s impossible for web developers to plead ignorance as the threshold of responsibility has been changed from “knowingly or intentionally” to “negligently” engaged in building an inaccessible website. The latest wording also does not allow web developers to shift any liability to the company that hired them.
If this becomes law, there could be a future where individual web developers need to certify their code via evidentiary proof of recent/current testing and conformance to standards. This could also require compliance and audit teams to track, document and store development records at scale for digital products that have millions of lines of code and hundreds or thousands of developers over several years of development. Think about that for a minute…
Meanwhile Over at The Supreme Court
Along similar lines, The US Supreme Court will decide in Acheson Hotels, LLC v. Deborah Laufer, Case No. 21-1410 whether a civil rights “tester” can bring a lawsuit challenging a hotel’s failure to provide information about its accessibility for people with disabilities when the “tester” has no intention to actually visit that hotel.
A district court tossed Laufer’s lawsuit for lack of standing, finding that she did not suffer any injury because she never intended to stay at the Coast Village Inn and the website was updated to state that it does not have any ADA-compliant lodging. However, the First Circuit Court of Appeals reversed that decision on appeal, joining with the Eleventh Circuit Court of Appeals in a case involving the same plaintiff, holding that she did have standing. The First Circuit explained that the alleged failure to provide information required by the ADA caused a sufficient injury and that the plaintiff suffered that injury despite the fact that she never intended to actually stay at the hotel.
Unless they just punt it back to the lower court to reconsider, whatever the high court decides will likely cascade into all public-facing industries. The small benefit to all businesses is the hope of a consistent definition regarding testing and testers. Currently, there is a circuit split on the issue.
The EEOC Weighs In
The Equal Employment Opportunity Commission (EEOC) published updated Technical Assistance titled “Visual Disabilities in the Workplace and the Americans with Disabilities Act.”
This document, one of a series of question-and-answer pieces addressing particular disabilities in the workplace, explains how the Americans with Disabilities Act (ADA) applies to job applicants and employees with visual disabilities, such as:
- When an employer may ask an applicant or employee questions about a vision impairment and how an employer should treat voluntary disclosures;
- What types of reasonable accommodations applicants or employees with visual disabilities may need;
- How an employer should handle safety concerns about applicants and employees with visual disabilities; and
- How an employer can ensure that no employee is harassed because of a visual disability.
The update even future-proofs itself by addressing artificial intelligence in hiring and employee or applicant assessments.
There are several things here that anyone involved with digital accessibility should make note of and plan to address, including this specific entry:
- Website modifications for accessibility. Taking steps to ensure that job applicants and employees can access and timely complete job applications, online tests, or other screening tools.
Up in Canada
The Accessibility for Manitobans Acts (AMA) is one of many Canada-specific regulations, however, it has an upcoming deadline that we want to ensure our readers are aware of. Any private sector business in Manitoba with one (1) or more employees must have conformant digital properties, training programs, feedback channels, and produce compliance progress reports by May 1, 2025.
Meeting these requirements will take time. While 2025 may seem far away, it’s much more cost-effective and efficient to start now than to wait until the deadline is looming. For more detailed information about AMA, as well as the other Canada regulations, read our blog What Your Organization Needs to Navigate Canada Digital Accessibility Laws: A comprehensive guide to understanding digital accessibility requirements in Canada.
Over to the UK
The first deadline for the UK’s Consumer Duty policy goes into effect July 31, 2023. This deadline applies to all new products and services. The policy sets higher and clearer standards for consumer protection across financial services and requires firms to put their customers’ needs first. It applies to all companies in the distribution chain for products and services sold to retail customers. Read Consumer Duty Implies Digital Accessibility: Are you ready for the deadline? for broader details on this.
Firms directly involved in the UK retail financial services industry, as well as those tangential to that industry such as titling companies, mortgage brokers and closing companies, should pay close attention to this–including US-based companies selling to the EU sector. More broadly, B2B companies that generate and send financial-related emails to customers of a financial institution would also be part of this equation. Business, marketing, and other “support” service providers should expect the financial services industry to be asking for evidence of the accessibility of their platforms and products.
And, Speaking of Looming Deadlines:
With the calendar turning July, we are now within two years of the The European Accessibility Act (EN 301 549) deadline. By June 28, 2025, businesses must ensure that products and services covered by the Act are accessible, including US-based companies selling to the EU sector. This follows the 2020 requirement for public sector digital properties needing to meet accessibility conformance.
The Act also puts in place a robust mechanism to ensure compliance with its accessibility requirements. It requires EU Member States to ensure they have matching legislation at the national level, complete regular compliance checks, have a robust complaints process where companies take necessary corrective actions and inform users which authority to turn to with their complaint.
As of the 2025 deadline, customers will be able to file complaints before national courts or authorities if services or products do not conform to the new rules.
EN 301 549 has global impact. It affects EU-based private sector companies and any non-EU companies doing business there. It’s also currently setting the highest WCAG conformance standard of all the regulations. And the regulation requires more than just WCAG conformance! It has specific requirements around biometrics, digital documents like PDF, feedback mechanisms and management, as well as regulatory reporting. Again, meeting these requirements will take time. Taking a well-planned, measured approach will ensure you can deliver without breaking the bank—or your teams.
Let’s Wrap This Hoedown Up
All of this represents positive outcomes for consumers of all abilities, including technology professionals, accessibility practitioners, and subject matter experts. Is it nearly enough? Are we done yet? Heck NO!!! But they are incremental steps in the right direction and will continue to grow digital equity for all. We’ll take it, tackle it head-on, and bring about more change. “Change begets change” as they say. But we must act. No one can afford to hide their heads in the sand, hoping “this too shall pass.” The digital accessibility train has left the station and will only continue to gain momentum from here.
Through conformance reporting, strategic consulting, assessments, VPATs, testing tools and processes, and remediation assistance, Deque can help ensure that you are equipped to meet these regulatory, legislative, and legal changes. Contact us to find out more.
More importantly, we’d like your opinion, dear reader, on the International Organization for Standardization’s (ISO) accessibility-related standards as we work towards a future blog post. Let us know your thoughts and how you apply them in the comments feature below.