DOJ Issues New Binding Web Accessibility Regulation

Where the Department of Justice once only outlined general digital accessibility guidelines, they’ve recently issued a very specific and binding regulation aimed at state and local governments.

This comes following the realization that local governments are becoming increasingly reliant on Internet-based content and apps to circulate information and provide services to the public.

Some examples include public newsletters, signup forms, payment systems, emergency response information, public input platforms, and social media posts.

Here’s what you need to know.

A New Web Accessibility Regulation to Be Aware Of

The Americans with Disabilities Act (“ADA”) states that nobody may be barred from accessing the services, programs, or activities of a public entity due to their disability. 

This rule applies to any web content or mobile apps used by a public entity to provide services, programs, and activities. 

Web content refers to any information or sensory experience that’s available via a web browser, media player, plugin, 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 media.

A mobile app is defined as software that is downloadable and designed to be used on mobile devices such as smartphones and tablets.

Even though this regulation mainly applies to state and local governments, private companies may still be affected. 

Web content and mobile apps that are developed by private entities but offered by a state or local government must also comply with this regulation. This includes any content and services a public entity has obtained or uses through licensing or third-party arrangements. 

For example, a website that creates educational web products for public schools or app developers hired by a municipality for a specific purpose would need to adhere to web accessibility regulations.

How to Comply and By When

In order to comply with this regulation, state and local governments should follow internationally recognized web accessibility standards – WCAG 2.1, Level AA in particular. 

Originally published by the World Wide Web Consortium (W3C), WCAG 2.1 is what the latest web accessibility guidelines are based on. These standards cater to users with a variety of disabilities, including visual, hearing, mobility, and cognitive impairments. 

Even though W3C has now published updated guidelines in the form of WCAG 2.2, the DOJ will not be adopting this version just yet. 

Deadlines for compliance are currently staggered. However, any public entities that serve 50,000 people or more must implement WCAG 2.1 AA by April 24, 2026. All other public entities have until April 26, 2027 to comply.

Entities that do not comply could face hefty fines and face lawsuits. 

Exceptions to Be Aware Of

Even though this new regulation is quite clear, there are a few exceptions to be aware of:

• Archived web content: Content that has been archived prior to this regulation does not need to meet web accessibility standards. However, this won’t apply if substantial changes have recently been made to this content. 
• Pre-existing electronic documents: Pre-existing Word, Excel, PowerPoint, and PDF files do not need to be accessible unless they are used by the public to apply for, gain access to, or participate in a public entity’s services, programs, or activities.
• Personalized and password-protected electronic documents: These documents do not need to be accessible unless they are being sent to someone with a disability. 
• Third-party content: Many public entities don’t have control over the content its residents create. For this reason, third-party posts on a public entity’s message boards, wikis, social media accounts, and other web forums are exempt from this rule.
• Pre-existing social media posts: Social media posts shared before the date a public entity is required to comply with this rule don’t need to be accessible.

The only other time this regulation wouldn’t comply is if steps taken to comply with WCAG 2.1 would fundamentally alter a government’s service, program, or activity. Any modifications that would impose undue financial and administrative burdens on the public entity are also exempt. 

However, proof will be required and the burden would need to be significant. Any changes that wouldn’t have this impact should still be carried out.  

In the event that public entities run into legal or technical barriers when remediating content, alternative versions of the content should be offered.