As educational institutions, dining establishments, retail outlets and other places of public accommodation shutter their doors in response to fears over the spreading coronavirus, individuals are turning to the internet to meet their needs more than ever. Indeed, internet traffic in the United States jumped 20 percent after President Trump declared the pandemic a national emergency, and even more in hard-hit United States cities, such as Seattle, where internet usage increased by 40 percent compared to January. Internet providers across the country are even offering free internet and unlimited data to meet the unprecedented need for online access.
In response to the spreading global pandemic, many commercial enterprises are developing and/or modifying their websites to meet this increased online demand. Educational institutions are implementing online classes, dining and retail establishments are providing for online ordering and delivery, and financial institutions are relying on online banking as they close branches and scale back retail operations.
The closing of these brick-and-mortar establishments and increasing reliance on online operations has great implications for businesses whose websites may not be accessible to the sight- and hearing-impaired. For several years, financial institutions, retailers, and other businesses have been facing a rising tide of website accessibility lawsuits, alleging violations of Title III of the Americans with Disabilities Act (“Title III”), which requires “places of public accommodation” to provide “full and equal enjoyment” of their goods and services to people with disabilities. While several Circuit Courts have held that a “place of public accommodation” is a physical structure, others have concluded the opposite and suggested that Title III applies to a business’ website. As online access expands and the coronavirus increases consumers’ reliance on business’ websites, this trend is likely to accelerate.
So what should these businesses do to minimize their potential liability in these trying times?
• Make Accessibility a Priority
- Ensure that upper management is aware of the institution’s obligations for ensuring digital accessibility.
- Ask general counsel to perform an accessibility risk assessment.
- Establish an accessibility advisory group that represents legal, marketing, and technology areas. Invite a reputable accessibility consulting organization to provide regular updates to the group on changes in the legal and regulatory landscape and inform the development of an accessibility strategy.
- Have legal counsel track legal developments.
- Have leadership determine and clearly communicate how a demand letter or lawsuit should be routed within the organization.
• Adopt an Accessibility Strategy
- Keep a central list of all digital products and services.
- Develop an accessibility policy, which should be regularly reviewed and maintained by the accessibility advisory group, an accessibility consulting organization, and legal counsel.
- Develop metrics to track compliance with the accessibility policy.
- Develop clear roles and responsibilities related to accessibility for certain individuals in the organization.
• Assess and Minimize Risk
- Perform a manual and/or automated accessibility audit of digital assets, including websites and mobile applications.
- Communicate known defects to management and the accessibility advisory group, who should investigate and address known defects promptly.
- Provide accessibility training for staff.
- Implement procedures to regularly update websites and mobile applications.