Pandemic-fueled increase in online activity likely to give rise to website accessibility lawsuits
With the COVID-19 outbreak forcing most people to either shelter in place or severely limit their outside activities, people everywhere are online more than ever. As a result, website accessibility lawsuits under the Americans with Disabilities Act are expected to sharply increase. Title III of the ADA requires places of public accommodation with websites (including retail businesses) to ensure that their websites are accessible to everyone, including visually impaired individuals using screen-reading software. Employees and customers are increasingly turning online for everything from ordering a pizza to completing training, attending meetings and conferences, and applying for jobs.
When it comes to shopping, online retailers should be aware that if their websites have barriers to accessibility, it may be only a matter of time before they receive a demand, or get sued, from a disabled customer who cannot use their website. Customers who were previously willing to ignore accessibility issues because they could just visit a physical retail location may no longer have that option due to shut-downs, stay-at-home orders, or simply new customer preferences for contactless purchasing options.
Places of public accommodation that have a customer or public-facing website should ensure their websites are free of barriers to accessibility and compliant with commonly accepted standards of accessibility, such as WCAG 2.0 or 2.1, and should seek legal counsel for assistance with accessibility policies if they receive a demand letter or are sued.
Meanwhile, employers who quickly roll out new technology to allow teleworking and video conferencing options for employees during the pandemic should take a moment to ensure that their technology is accessible. For example, some videoconferencing tools are compatible with screen-reading software for low vision users, while others are not. Addressing accessibility during the technology procurement phase, rather than attempting to deal with employee access issues later, is often advisable.
Employers should also be aware that employees who successfully telework during the pandemic may not accept an employer’s later excuse that telework is not a reasonable accommodation for an employee with a disability. Employers should continue to engage in the interactive process under the ADA when faced with an employee’s accommodation request both during and after the pandemic, and to work with counsel to ensure requests from disabled employees are handled appropriately.