By Mark Rasch
In the midst of the ongoing COVID-19 pandemic, companies are rightly concerned about their ability to operate effectively. For in-person businesses, mask-wearing and social distancing are mandatory. For remote working, we have a combination of BYOD (Bring Your Own Device) and VPN access, and video conferencing through technologies like Zoom, Google Hangouts and Microsoft Meet. For consumer sales, marketing and promotion, we have web-based marketing, sales and order fulfillment. However, the federal disability law, which celebrates its anniversary this week, impacts all of these, and companies need to take efforts to ensure that the way they conduct business during the COVID pandemic keeps them compliant with disability law.
ADA & Rehabilitation Act
The Americans with Disabilities Act (ADA) and a companion law, the Rehabilitation Act, require certain companies that are “public accommodations” and certain covered employers to provide “reasonable accommodation” to persons with certain kinds of disabilities. Many states have consumer protection or civil rights laws that either expand on these laws or that provide jurisdiction for enforcement.
Some courts have found that electronic communications, public websites and even things like video on demand are “public accommodations” which must be accessible to the disabled. For example, prior to the pandemic, both Harvard University and MIT were sued by disabilities rights advocates because lectures they recorded and posted online for the convenience of their students were not closed-captioned for the hearing impaired. Websites generally have given rise to thousands of lawsuits, with disabilities rights advocates (and class action lawyers purporting to work on their behalf) using automated tools to identify websites that are not fully accessible to the disabled, and then automating the process of both sending demand letters to these entities and filing federal ADA lawsuits against the companies that host the sites.
Because the Americans with Disabilities Act does not provide for specific damages, but does provide for attorney’s fees, the company receiving the lawsuit (particularly if the website is not compliant) faces the dilemma that, if they fight the lawsuit, they may actually increase the legal fees for which they may be liable. Plaintiff’s counsel are aware of this and often make settlement requests in the tens or hundreds of thousands of dollars as a result. It is debatable whether websites alone are “public accommodations” under the ADA, with federal courts in Massachusetts holding that they generally are, and in California holding that they are only when connected to or an adjunct to a brick and mortar site that is itself a public accommodation. But plaintiff’s lawyers often recognize this disparity in the law and file their lawsuits in the more friendly jurisdiction.
With entities moving many functions to a virtual environment, even things like Zoom church services or Zoom earnings calls, they have to be cognizant of issues related to accessibility and disability compliance. As a practical matter, companies should consider each of the following:
- Have both your publicly accessible websites and your intranets or internal sites tested for compliance with the WCAG 2.0 internet accessibility standard. While WCAG 2.0 is not an “official” requirement of the ADA, it is the standard most commonly used to determine accessibility for websites. Many free online tools will conduct a “quick” website test for compliance. If you find you are not fully compliant, there are many companies that offer WCAG compliance services which include periodic testing, strategy, implementation and certification. Depending on your size and complexity and the nature of the website and company, consider using one of these services, or have your web developer include WCAG 2.0 compliance in their overall strategy.
- If you receive an ADA/Rehab Act demand from an attorney, do not ignore it. First, contact counsel to assist you in your response. Responding quickly and effectively can mean the difference between having to defend lawsuits and preventing them. Typically, this is a multi-pronged response which includes voluntary self-assessment of accessibility, remediation and sometimes payment of a nominal (truly nominal) amount. If you ignore the demand, a lawsuit is almost certain to follow.
- Consider the ADA/Rehab Act in all of your COVID-19 necessary communications. This may be as simple as using the embedded transcription services provided in many communications media like Google Hangouts to provide visual input. It may mean using transparent masks for hearing impaired communications. It may mean Video Remote Interpreting (VRI), written communications, captioning or CART, or speech-to-text apps. Remember, the accommodations need only be reasonable, but knowing about the law or the nature of the communications (or the remediation) is the first step for reasonable accommodation. Use this to your advantage. Being ADA/Rehab Act “compliant” can also help you to reach out to new communities of customers, or simply demonstrate your commitment to be inclusive — even if compliance is not essential. When considering new applications, technologies, products or services, ask whether these help or hurt your overall ADA/Rehab Act compliance. Reach out to the disability community. Make this a positive advantage rather than just a compliance requirement.
Remember, whether on-line or in-person, the Americans with Disabilities Act requires reasonable accommodation. The last thing you want is the cost of a lawsuit and the resulting appearance of indifference to the needs of the disabled. KJK can work with you to ensure that your websites and communications meet this standard. Reach out to Mark Rasch at mdr@kjk.com or 216.696.8700.