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.

By: ADA Title III Editorial Board

Seyfarth Synopsis: Final Rule Setting WCAG 2.0 AA as the Federal Agency Website Standard Published in Federal Register, Triggering Compliance Deadline of January 18, 2018.

Last week we reported that the Access Board announced a final rule, under the authority of Section 508 of the Rehabilitation Act, requiring the websites and electronic content of federal agencies to conform to WCAG 2.0 AA within one year of the date the rule is published in the Federal Register.  This final rule was published in the Federal Register yesterday, January 18, 2017, making the effective date of the final rule March 20, 2017; and requiring compliance with the new rule setting WCAG 2.0 AA as the standard for federal government websites by January 18, 2018.

Seyfarth Synopsis: Fighting a web accessibility lawsuit could invite DOJ’s intervention, as did a Florida retailer’s recent Motion for Judgment on the Pleadings.

Fighting a website accessibility lawsuit is very tempting to many frustrated businesses, but can be a risky decision. One such risk – Department of Justice intervention in the lawsuit – came to fruition for one such business on Monday in Gil v. Winn Dixie, when the DOJ filed a Statement of Interest in the case pending in the Southern District of Florida.

In the lawsuit, Gil alleged that he attempted to access the goods and services available on the Winn-Dixie website, but was unable to do so using his screen reader technology or any other technology provided on the Winn-Dixie website. Accordingly, he claimed the website is inaccessible in violation of Title III of the Americans with Disabilities Act.

Triggering the DOJ’s somewhat unexpected involvement in this prolific plaintiff’s (by our count, as of October 20, 2016, Gil’s attorney had filed 43% of the 244 federal website accessibility cases filed this year) lawsuit was Winn-Dixie filing a Motion for Judgment on the Pleadings.  The DOJ states that Winn-Dixie admitted in the Motion that, through its website, patrons can order prescription refills to be picked up at the store pharmacy; search for nearby stores; and gather information on store hours, products, and services. Winn-Dixie argued that it has “no obligation under the ADA to ensure that Mr. Gil and other blind patrons can access these and other services and advantages offered through its website” because under the Eleventh Circuit law, only physical locations are subject to Title III of the ADA. The DOJ could not stand by and let this position go unchallenged:

“Because Winn-Dixie Stores’ argument cannot be squared with the plain language of the statute, the regulations, or with federal case law addressing this issue, the United States respectfully submits this Statement of Interest to clarify public accommodations’ longstanding obligation to ensure that individuals with disabilities are not excluded, denied services, or treated differently than other individuals because of the absence of auxiliary aids and services, such as accessible electronic technology. This obligation means that websites of places of public accommodation, such as grocery stores, must be accessible to people who are blind, unless the public accommodation can demonstrate that doing so would result in a fundamental alteration or undue burden.”

DOJ’s authority is the ADA’s requirement that public accommodations provide auxiliary aids and services – including accessible electronic information technology – at no extra charge to ensure effective communication with individuals with disabilities, unless it would result in a fundamental alteration or undue burden.

In response to Winn-Dixie’s position that Title III applies only to its physical location. DOJ cited the language of the ADA which says that “Title III applies to discrimination in the goods and services ‘of’ a place of public accommodation, rather than being limited to those goods and services provided ‘at’ or ‘in’ a place of public accommodation.”  DOJ also argued Title III’s application to the website at issue is consistent with every other court decision to have addressed the coverage of websites with a nexus to brick and mortar locations. DOJ went on to state its view that even websites with no nexus to a brick and mortar location are also covered under Title III of the ADA – a position that has been explicitly rejected by the Ninth Circuit.

Coming on the heels of the DOJ’s intervention in the MIT and Harvard cases, and one retailer’s loss on summary judgment when fighting a web accessibility lawsuit in Colorado Bags N’ Baggage, this case demonstrates that litigating a website accessibility case has broader implications than just winning or losing on the merits.  Few businesses want the DOJ inquiring into their ADA Title III compliance practices, of which websites are only a part.

Edited by Minh Vu.

Seyfarth Synopsis:  If you would rather not read the 30-page small print Federal Register notice, this summary will provide you with what you need to know about the Justice Department’s most recent official pronouncement on web accessibility.

As we reported, last week DOJ issued a lengthy Supplemental ANPRM (SANPRM) for state and local government websites, which some commentators have decried as a “do-over.”  This unusual move was a surprise, to be sure, but we do not view it as a complete setback.  The SANPRM appears to be DOJ’s attempt to preview its position on key issues and obtain public comment.  As such, the SANPRM has very serious implications that go far beyond the realm of state and local governments.  The rules that DOJ ultimately issues in the state and local government website rulemaking will likely provide the framework for the proposed rule for public accommodations websites — currently slated for 2018.   Accordingly, public accommodations and the organizations that represent them need to submit comments in response to the SANPRM before the comment period closes on August 8, 2016.

We normally don’t write long blog posts but the lengthy SANPRM — containing no fewer than 123 questions for public comment — warrants an exception.  Below is a high level summary of the key issues, with some of our preliminary commentary:

  • Scope of Regulation. DOJ is considering broadening the scope of the future rule from websites to “Web content.”  This expansion could potentially cover web content that a covered entity places on websites that it does not own or control (g. advertising), and could have far reaching implications.
  • Accessibility Standard. DOJ believes that WCAG 2.0 AA should be the standard for Web content, as we’ve predicted.
  • Compliance Period. DOJ is considering giving public entities “two years after the publication of a final rule to make their Web sites and Web content accessible in conformance with WCAG 2.0 Level AA, unless compliance with the requirements would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.”  This begs the question of why DOJ’s enforcement attorneys have been demanding that businesses and state local governments make their websites comply with WCAG 2.0 AA right now.  The two-year proposal is a shift away from DOJ’s initial, 2010, ANPRM position where it contemplated different compliance dates for existing web pages versus new webpages or websites.  The SANPRM also notes DOJ is considering a longer three-year compliance period for captioning of live audio content.
  • Consultants. DOJ wants to know if there is a shortage of consultants who can bring Web content into conformance with the proposed WCAG 2.0 AA standard.  Rather than rely on anecdotal comments, we suggest that DOJ canvas the field of such consultants and interview them to see if they are actually qualified.  DOJ will likely learn that there are very few truly experienced digital accessibility consulting firms – certainly not enough to assist the thousands of state and local governments, let alone the millions of public accommodations that will most certainly need guidance.
  • Less Demanding Standard for Small Entities. DOJ is considering whether “small public entities” or “special district governments” should have a different compliance timetable or be subject to a less demanding standard such as WCAG 2.0 A, as opposed to AA.  This approach could set the precedent for small businesses in a future proposed rule applicable to public accommodations.
  • Possible Exemptions. DOJ is considering exempting the following Web content from compliance with the proposed WCAG 2.0 AA standard:
    • Archived Web Content. To be considered “archived Web content,” the content would have to be (1) maintained exclusively for reference, research, or recordkeeping; (2) not altered or updated after the date of archiving; and (3) organized and stored in a dedicated area or areas clearly identified as being archived.  Covered entities would still have to provide accessible versions of this content if someone asks for it.
    • Conventional Electronic Files (g. PDFs, Word documents, Excel spreadsheets, and PPT presentations) that existed on a Web site before the compliance date of any proposed rule.
    • Third-party Web Content Linked from the Public Entity’s Website. Note, however, there would be no exception for linked Web content if the public entity “uses the third-party Web site or Web content to allow members of the public to participate in or benefit from the public entity’s services, programs, or activities.”  For example, if the state parking enforcement authority contracts with a third party to process parking ticket payments on a third party site, that site would also need to conform to WCAG 2.0 AA.
    • Third Party Content. A public entity would not have to make content that is posted on its website by third parties conform with the proposed standard, unless the information is essential for engaging in civic participation or if the Web site owner has chosen to include the third party content on the Web site.  This proposal strikes us as highly ambiguous.  Would YouTube have to provide captioning for every video posted by third parties because it has chosen to invite such third parties to post the videos?  Would allowing people to post be considered an affirmative choice by the website owner triggering the compliance obligation?  What if a website owner needs to include key third party content on its site but the vendor but the vendor won’t agree to make it accessible?  Would the website owner be barred from including this third party content on its website, even if no vendor will provides it?
  • Social Media Platforms. DOJ considers social media platforms such as Facebook, YouTube, Twitter, and LinkedIn to be covered by Title III of the ADA and proposes to not address the use of these platforms by state and local governments (subject to Title II) in this rule.  However, DOJ says that any information provided by public entities on those social media platforms must also be available in some alternative way if the platforms are not accessible.
  • Web content of Educational Institutions. DOJ is considering requiring educational institutions to make all content available to the public (as opposed to exclusively for students) on their Web sites conform to WCAG 2.0 AA.   Universities should be gearing up to fight this proposition vigorously because their websites tend to be vast repositories of information (some of which may never be accessed or viewed), including thousands of videos, that would have to be made to conform to WCAG 2.0 AA.  DOJ said that content relevant to a particular student or parent must be made accessible on demand “in a timely manner.”
  • Conforming Alternate Versions of Web Pages and Web Content. DOJ may permit the use of conforming alternate versions of a Web page and/or Web content (1) when it is not possible to make Web content directly accessible due to technical or legal limitations; or (2) when used to provide access to conventional electronic documents.
  • Undue Burden and Fundamental Alteration Defenses. DOJ is considering the use of these defenses as grounds to not make Web content conform to WCAG 2.0 AA, but (1) the burden of proving defense would remain on the public entity; (2) the decision that compliance would result in such alteration or burdens must be made by the head of a public entity or his or her designee after considering all resources available for use in the funding and operation of the service, program, or activity; and (3) the decision must be documented with a written statement of the reasons for reaching that conclusion.  Moreover, the public entity still has to take any other action that would not result in such an alteration or such burdens.  Moreover, the public entity still has to provide access in some alternative fashion unless doing so would also result in a fundamental alteration in the nature of a service, program, or activity or undue financial and administrative burdens.
  • Does Compliance with WCAG 2.0 AA Satisfy a Public Entity’s ADA Obligations? Not entirely.  DOJ says that a public entity would not be required to go beyond this standard even if a person with a disability is unable to access the Web content.  However, the public entity would still have to utilize an alternative method of providing the individual with a disability equal access to the information, service, program, or activity on its Web site unless the public entity can demonstrate that alternative methods of access would result in a fundamental alteration in the nature of the service, program, or activity or undue financial and administrative burdens.
  • Measuring Compliance with WCAG 2.0 AA: DOJ is seeking public comment on how compliance with WCAG 2.0 Level AA should be assessed or measured, particularly for minor or temporary noncompliance.  Should the measurement be based on the percentage of Web content that is accessible, or some minimum threshold of compliance?  The DOJ also wants to know if there are circumstances where Web accessibility errors may not be significant barriers to accessing the information or functions of a Web site.  We strongly believe that the regulations must contain a clear statement that temporary noncompliance is not a violation of the ADA.  Websites change all the time and there are bound to be bugs and issues that come up.  And, guidance on how compliance with the standard will be measured given the dynamic nature of websites is essential.
  • Coverage of Mobile Apps.  DOJ asks whether its rule should cover mobile apps and which standard should be used. DOJ specifically called out WCAG 2.0, the User Agent Accessibility Guidelines 2.0, the Authoring Tools Accessibility Guidelines 2.0, or ANSI/Human Factors Engineering of Software Interfaces 200 as possible accessibility requirements for mobile apps.

As you can see, there are a many issues requiring public comment in the SANPRM.  State and local governments, persons with disabilities, digital accessibility experts, vendors of third-party content  and public accommodations all need to engage in this process and provide their input.  If you have questions about the SANPRM or how to get involved in making comments, feel free to contact us or your favorite Seyfarth attorney.