Seyfarth Synopsis: The Department of Transportation says that an airline’s provision of an accessible alternative website violates the Air Carrier Access Act (ACAA), so are such websites an acceptable means of providing access under the ADA?

In response to the onslaught of website accessibility lawsuits against public accommodations covered by Title III of the ADA, some website accessibility consulting companies have been promoting solutions that involve the use of an alternative version of a business’ primary website that conforms to the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA).  The alternative version is typically accessed through a link on the website and, unlike the bare bones “text-only” websites of the past, looks very much like the non-accessible website. While not cheap, this solution is appealing to many businesses because it requires no coding changes to the primary website, no substantial commitment of internal company resources because it is implemented by the third party consultant, and can be implemented fairly quickly to provide immediate access for users with disabilities.

In a recent consent order against airline SAS, the Department of Transportation (DOT) made clear that these alternative websites do not meet the Air Carrier Access Act (“ACAA”) requirement that all airlines make all web pages on their primary websites accessible by December 12, 2016.  The DOT said SAS violated the ACAA’s website rules when it when it “created a separate Web site for individuals with disabilities instead of ensuring that its primary Web site met the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA standard.”   To avoid an enforcement action, SAS entered into a consent order which requires SAS to pay $100,000 in immediate penalties, and other $100,000 in penalties if it later violates the Consent Order.

The airline had engaged a well-known website accessibility consulting company to create an “assistive version” of its primary website which had a separate url from the airline’s primary website url, and could be accessed from a link on the top right of the primary website homepage.  The airline stated that it had in good faith employed this solution to meet the compliance deadline while it was building a new global primary website that would be (and is now) accessible.  It also argued that it met the undue burden exception to the website rule, which, when met, allows use of an alternate conforming website.  DOT responded that the ACAA permits air carriers to use a WCAG Level AA conforming alternate version only when conforming the primary web page to all WCAG 2.0 AA success criteria would constitute an undue burden or fundamentally alter the information or functionality provided by the primary webpage, and that SAS could not meet either exception.  The DOT cited the ACAA’s explanation for its prohibition on separate accessible websites, as “likely [to] perpetuate the problem of unequal access as carriers allot fewer resources than needed over time to properly maintain the secondary site.”  However, the Consent Order did not state that the alternative website failed to comply with the WCAG 2.0 AA in any way.  The DOT also rejected SAS’s argument that it was only using the alternative website to meet the deadline while its entirely new accessible primary website was under development.  We assume that SAS, like many other businesses, did not want to spend money remediating an old website that would soon be retired.

The DOT Consent Order raises the obvious question of whether an alternative accessible version of an inaccessible website can be used to provide access under Title III of the ADA.  We do not think the DOT Consent Order is dispositive because, unlike the ACAA which explicitly says the primary websites of airline carriers must comply with WCAG 2.0 AA, the ADA does not specify any accessibility standard for public accommodations websites.  In fact, the Department of Justice (DOJ) which is responsible for enforcing the ADA recently stated in a letter to Congress that “absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication.”  That said, the Consent Order certainly raises concerns about the use of alternative accessible websites, and public accommodations should carefully examine their options before signing up for this type of solution.

Seyfarth Synopsis:  Is it a service animal or an emotional support animal?  Do I have to allow both?  How to tell one from the other, and the rules that apply.

We get a lot of questions about service and emotional support animals.  It’s obvious that there is a lot of confusion out there.  Here is how to tell one from the other, and the rules that apply to both.

Public Accommodations.  Under Title III of the federal Americans with Disabilities Act (ADA) and virtually all state laws, a service animal is an animal that has been trained to perform work or tasks for the benefit of a person with a disability.  Emotional support animals—also called therapy or comfort animals—have not been trained to perform work or tasks.  Instead, they provide a benefit just by being present.  Public accommodations (e.g. restaurants, theatres, stores, health care facilities), are allowed to ask only two questions to determine if an animal is a service animal:  (1) Do you need the animal because of a disability? and (2) What work or tasks has this animal been trained to perform?  The second question is the key:  If the person is unable to identify the work or tasks that the animal has been trained to perform, then the animal is not a service animal.

Under the ADA, only a dog or miniature horse (no, we are not joking) can serve as service animals.  The ADA requires public accommodations to allow service animals to accompany their owners anywhere the owners can go, although the Department of Justice made clear a few years ago that they can be prohibited from swimming pools (in the water) as well as shopping carts.  The ADA provides no protection for emotional support animals in public accommodations.  The Department of Justice has a very helpful FAQ about service animals, and the Washington Post recently published a story that is also useful.

When developing policies, public accommodations must comply with both federal and state law, and some states provide greater protections.  For example, in some states, any type of animal (not limited to dogs and miniature horses) can be a service animal provided it has been trained to perform work or tasks.  Some states may provide protection for emotional support animals as well.  Virtually all states protect service animals in training, which are not addressed by the ADA.  Thus, public accommodations must tailor their policies to account for state requirements, or adopt a policy that will comport with the broadest of all state laws nationwide.

Housing.  The federal Fair Housing Act (FHA) applies to residential facilities and provides protection for emotional support animals in addition to service animals.  Thus, property managers, condo associations, co-op boards, and homeowners associations need to keep this in mind when dealing with requests from homeowners and tenants relating to these types of animals.  The Department of Housing and Urban Development’s most recent guidance on this topic is here.

Airplanes.  The Air Carrier Access Act (ACAA), not the ADA, governs accommodations for people with disabilities on airplanes.  The Department of Transportation (DOT) is responsible for enforcing the ACAA rules.  Historically, the rules have required accommodations for emotional support animals, but recent abuses of the rules by passengers seeking to bring all manner of animals such as peacocks and pigs onto planes has caused the DOT to revisit this issue in a pending rulemaking.

Compliance Strategy.  All businesses should have a written policy concerning service and emotional support animals that takes into account federal law, state law, the nature of the business, and the ability of employees to make decisions about whether an animal should be allowed onto the premises.  Having a written policy and training employees on the policy is key to ensuring that they know how to respond when one of these animals shows up on the premises.