By Minh Vu and Michael Fleischer
Although we are not Canadian lawyers, we are reporting on this issue because it is an important development that affects many of our clients and their website compliance efforts in the United States.
As we previously reported, the United States Department of Justice continues to work on its proposed website accessibility regulations for public accommodations. Meanwhile, the province of Ontario, Canada, has moved forward with its own regulations that will require some U.S. companies doing business in Ontario to ramp up their website accessibility efforts immediately.
In 2011, Ontario issued website accessibility regulations under the Accessibility for Ontarians with Disabilities Act (“AODA”). Beginning on January 1, 2014, all “large organizations” (defined as those that employ 50 or more employees) must ensure that their “new internet websites” as well as any web-content they posted to their existing websites after January 1, 2012, conform with the WCAG 2.0, Level A. (By January 1, 2021, the AODA will additionally require large organizations’ internet websites and web content conform with WCAG 2.0, Level AA (the standard largely believed the USDOJ will adopt), other than Captions (Live) and Audio Descriptions (Pre-Recorded).) WCAG is a set of guidelines developed by an international organization called the World Wide Web Consortium for making websites and web content accessible to a broad range of users with disabilities.
The AODA regulations define a “new internet website” as either a website with a new domain name or a website with an existing domain name undergoing a significant refresh. Although there is no industry standard definition for significant refresh, the Ontario Ministry of Community and Social Services’ Regulation Guidelines (a supplement to the AODA regulations) notes that any one or more of the following could constitute a “significant refresh”: (1) a new look and feel to the website; (2) a change in how users navigate around the website; and (3) a major update and change to the content of the website. This final item is rather broad and there is no detailed definition, but the Ministry noted that content could include any information that may be found on a web page or web application, including text, images, forms and sounds.
Large organizations are required to meet the WCAG 2.0 Level A requirements unless it is not practicable to do so. Practicability refers to the organization’s ability to modify its websites and web content given all of the organization’s circumstances, including the availability of commercial software or tools and its impact on transactional applications.
Large organizations that fail to comply with the AODA after the Ontario Ministry of Community and Social Services (the enforcing agency) has made prior determinations of non-compliance may face severe penalties of up to $100,000 (Canadian) per day.
Accordingly, U.S. companies that have 50 or more employees in Ontario and a website that reaches Ontarians should consult with their Canadian attorneys about these requirements and take prompt action.