The Americans with Disabilities Act (“ADA”) provides that no individual may be barred from accessing the services, programs, or activities of a public entity due to the individual’s disability.  As local governments increasingly rely on Internet-based content and apps to disseminate information and provide services to the public, the Department of Justice (“DOJ”) published a new rule establishing specific requirements for state and local governments to make their web content and mobile apps accessible for individuals with disabilities.  Despite previously issuing general guidance on digital accessibility, this rule will be the first binding regulation issued by the DOJ to address state and local government regarding website accessibility since the statute was passed in 1990.

The rule applies to any web content or mobile apps used by a public entity to provide services, programs, and activities.  For the purposes of the new rule, “web content” refers to “any information and sensory experience” on the web communicated through a web browser, media player, plug-in, or other software that helps a user interact with online content.  This includes text, images, sounds, videos, controls, animations, and conventional electronic documents, regardless of whether the content is viewed on a desktop computer, smartphone, or other medium.  A “mobile app” is defined as software that is downloadable and designed to be used on mobile devices such as smartphones and tablets.

While examples vary widely, municipal governments commonly use web content and apps to make available to the public newsletters, signup forms for community programs and classes, payment systems, emergency response information, public input platforms, and social media posts, among a host of other uses.

To make web content and mobile apps accessible, the rule requires state and local governments to incorporate internationally recognized web accessibility standards, known as WCAG 2.1 Conformance Level AA.  Originally published in 2018 by the World Wide Web Consortium (“W3C”), WCAG 2.1 is intended to help web designers make their content more accessible to individuals with various forms of disabilities, including blindness and low vision, deafness and hearing loss, limited movement, and photosensitivity, among others.  

Though W3C recently published updated guidelines (WCAG 2.2), the DOJ declined to adopt this latest version—or any evolving standard of compliance—absent further rulemaking.

How do these rules impact private companies?

Though the rule is directed at state and local governments (federal agencies are subject to separate accessibility requirements), its impact does not stop there.  Web content and mobile apps that are developed by private entities but offered by a state or local government must also comply with WCAG 2.1 AA.  This includes content and services a public entity has obtained or uses through contractual, licensing, or other arrangements with third parties, regardless of whether the public entity played a role in its design or operation.  For example, this could impact third party contractors that create educational web products for public schools, app developers hired by a municipality to collect parking fees and fines, and any web designer that builds an online platform offered as a service by a state or local government.

What are the exceptions?

The rule establishes limited exceptions for five categories of web content and mobile apps:

• Archived web content: This refers to web content, reproductions of physical content, and reproductions of physical media uploaded prior to the date a public entity must begin complying with the rule.  (The rule’s effective date is staggered based on a municipality’s population.)  However, the exception does not apply if the public entity makes substantial changes to archived content, such as including additional information or updating existing information (but not including minor revisions, such as redactions).

• Preexisting conventional electronic documents: Preexisting files in word processor formats (e.g., Word documents), spreadsheet formats (e.g., Excel spreadsheets), presentation formats (e.g., PowerPoint files), and PDFs do not need to be accessible unless they are used by the public to apply for, gain access to, or participate in the public entity’s services, programs, or activities.

• Individualized, password-protected or otherwise secured conventional electronic documents: State and local governments often make information available to their citizens through password-protected portals, such as when an individual is required to enter a password to pay an electric bill or access confidential tax information.  These documents do not need be accessible unless they are directed to an individual with a disability. 

• Content posted by third parties on government websites: Recognizing that public entities may not have control over the content its residents create, the rule exempts third party posts on a public entity’s message boards, wikis, social media accounts, and other web forums.

• Preexisting social media posts: Social media posts shared before the date a public entity is required to comply with this rule need not be accessible.

Also excluded from WCAG 2.1 compliance are changes that would fundamentally alter a government’s service, program, or activity, as well as modifications that would impose undue financial and administrative burdens on the public entity.  Whether a change constitutes an undue financial and administrative burden is a highly fact-specific inquiry and includes consideration of the public entity’s resources and the cost of implementing accessibility measures.  Even in such scenarios, the public entity must still take action to ensure that individuals with disabilities receive the benefits or services provided by the public entity to the “maximum extent possible.”  For instances when conformance with the rule would be impractical (i.e., the government entity experiences technical or legal barriers to implementing WCAG 2.1 AA), “substantial compliance” may be acceptable; a public entity that can demonstrate that its nonconformance is only “minimally impactful” on the accessibility of its web content and mobile apps will be treated as if it were compliant.

To promote flexibility and innovation, if the public entity faces legal or technical barriers that make it impossible for certain content to adhere to WCAG 2.1, the rule allows a public entity to use alternative versions of the content.  In such cases, the alternative version must still provide substantially equivalent or greater accessibility and usability of the web content or mobile app.  For example, web content that adheres to WCAG 2.1 AAA or WCAG 2.2 AA would be compliant because these guidelines require an equal or greater level of accessibility compared to WCAG 2.1 AA.

Implementation timeline

Though the rule goes into effect on June 24, 2024, deadlines for compliance are staggered.  Public entities that serve 50,000 people or more must implement WCAG 2.1 AA by April 24, 2026, while all other public entities have until April 26, 2027 to comply.

Enforcement and penalties for noncompliance

The DOJ exercises its enforcement authority through lawsuits and settlement agreements.  Most frequently, these actions require the public entity to revise its policies and procedures.  In some cases, however, the public entity will be ordered to pay damages to those effected by the noncompliance.  The DOJ may also join private suits it believes will impact future enforcement of the ADA and related regulations. 

Next steps

Though enforcement of the new rules will not begin until 2026 at the earliest, implementation of accessibility standards can be an arduous and time-consuming process.  As such, impacted public entities and third parties should promptly begin reviewing their current accessibility practices.  

Authored by Mark Brennan, Katy Milner, and Warren Kessler.

Noah Fisher, summer associate in our Washington, D.C. office, contributed to this article.