Understanding the New Accessibility Requirements for State and Local Government Websites, Apps, and Social Media

The Department of Justice has approved new rules requiring state and local government websites to comply with Website Content Accessibility Guidelines (WCAG) 2.1 AA in order to comply with the Americans With Disabilities Act (ADA).  State and local governments (“public entities”) have been required to comply with the ADA since it was created, but there have never been technical guidelines to follow for making websites compliant.  These new rules set WCAG 2.1 AA as the technical standard to follow.

These rules were published in the Federal Register and will take effect 60 days after that publication date.  From that point, localities with a population of over 50,000 will have 2 years to meet these new rules.  Localities with a population of less than 50,000 will have 3 years.

About Conforming with WCAG

Website Content Accessibility Guidelines (WCAG) are an international standard created by the W3C to help create more accessible websites.  These guidelines are aimed at making websites more “perceivable, adaptable, operable and robust” for all users, including those who use screen readers and other assistive technologies to interact with websites.  WCAG success criteria are divided into three tiers, with A being the least strict and AAA being the strictest.  Level AA currently includes 54 separate success criteria pertaining to things like:

• color contrast
• providing alternatives for image, video, and audio content
• form functionality and labels
• keyboard usability
• headings and links
• text size

10 Key Takeaways Regarding New Accessibility Rules

After reading through the full text of the rules and the DOJ’s explanation, here are 10 takeaways that are important to understanding the scope of these new rules.

1. New Rules Apply to State and Local Government Websites and Mobile Apps

The new rules apply to “web content” made available through both websites and mobile apps. 

• Mobile apps are defined as “software applications that are downloaded and designed to run on mobile devices, such as smartphones and tablets.” 
• Web content “means the information and sensory experience to be communicated to the user by means of a user agent, including code or markup that defines the content’s structure, presentation, and interactions. Examples of web content include text, images, sounds, videos, controls, animations, and conventional electronic documents.”

2. New Rules Apply to Social Media Posts

These new rules also apply to social media posts created on or after the compliance date.  For example, public entities are not responsible for making Facebook itself accessible, but they are responsible for making sure their posts on Facebook are accessible.  This includes making sure images have alt text, that the content and background have sufficient color contrast, using “camel case” for hashtags, and avoiding blinking, flashing, or strobing effects. 

3. “Conventional Electronic Documents”

Conventional Electronic Documents are defined as “PDFs, word processing files, presentations, and spreadsheets”.  Any of these files created on or after the compliance date must be accessible.  Documents created before the compliance date are not required to be accessible as long as they are not edited after the compliance date. 

There is an exception for documents that only apply to one person (ie. a user’s water bill), but under existing ADA rules, the public entity is still required to provide that information in an alternate format upon request.

4. Archive Content

Content that is created before the compliance date and that is retained on the site purely for record keeping, reference, or research purposes is not required to meet WCAG requirements as long as it is not altered after the date of archiving and is clearly identified as archived material and/or is stored in a designated area of the site.  Public entities would still be required under the ADA to provide an alternative version that is accessible if requested.  Any content created after the compliance date must meet WCAG requirements, even if it is being added to the archive (see conventional electronic documents).   

Archived content cannot be content that is still actively used.  Web pages that list archived content must be accessible.  If archived content appears within the site search results, there needs to be a clear indicator as part of the search result that indicates that the content is archived. 

5. Third-Party Content

If web content is created or made available on third-party websites and apps which the public entity has a “contractual, licensing or other arrangement” with, those websites and apps are subject to these new rules.  This can include apps where people pay for parking, do a “scavenger hunt” created by the Tourism Department, or take advantage of special discounts from local businesses that have signed up through the Economic Development Department. 

Third-party plugins and code that are incorporated into the website must be accessible.  This includes all forms, popups, carousels, sliders, maps, calendars, social media feeds, payment systems, scheduling tools, embedded content, etc.  Public entities are not responsible for making comments left by a visitor accessible, but the form to enter those comments must be.  Forms for users to submit items to a “community calendar” must be accessible. 

6. “Conforming Alternate Versions”

If a public entity can show that “it is not possible to make web content directly accessible due to technical or legal limitations” that are entirely outside of their control, they can provide a “conforming alternate version” of the content.   This applies to very specific instances and cannot be used as an excuse for noncompliance in general. 

7. “Equivalent Facilitation”

The DOJ has set WCAG 2.1 AA as the minimum requirement, but public entities are free to provide additional and higher levels of accessibility, for example by following WCAG 2.1 AAA, WCAG 2.2 AA, or WCAG 2.2 AAA. 

8. “Noncompliance that has a minimal impact on access”

Limited exceptions are allowed where noncompliance does not affect the ability of an individual with a disability to use the “web content or mobile app to access the same information, engage in the same interactions, conduct the same transactions, and otherwise participate in or benefit from the same services, programs, and activities as individuals without disabilities, in a manner that provides substantially equivalent timeliness, privacy, independence, and ease of use.”  Again, this applies to very specific and narrow use cases and is not an excuse for general noncompliance. 

9. Alterations and Undue burdens

If the public entity believes that compliance would “fundamentally alter the service, program, or activity or would result in undue financial and administrative burdens”, the “head of the public entity or their designee” must submit a written statement explaining how they have reached this conclusion.  They are still required to do as much as possible to achieve compliance with these new rules and all other existing ADA requirements.   

It is unclear at this time what the process is for making these types of appeals, what the DOJ review process might be, or if they might reject a statement and still require the public entity to comply. 

10. Ongoing Maintenance

The DOJ acknowledges that it may not be possible for the site/app to be 100% compliant 100% of the time, but they do expect that public entities will work to maintain compliance over time and that any issues of non-compliance are isolated and temporary. 

Elevage Digital can help your state or local government prepare to comply with these new rules. We know that government budget cycles can take time. We are here to help guide you through the steps of budgeting, auditing, and remediating your site well in advance of the deadline. All of this work takes time, so you need to start now in order to meet the deadline!