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Legislation

ADA

Icons of various disabilities

The Internet has dramatically changed the way state and local governments do business. Today, government agencies routinely make information about their programs, activities and services available to the public by posting it online. As a result many people can easily access this information seven days a week, 24 hours a day.

Many government services and activities are also provided on websites because the public is able to access the data at any time of day, without the assistance of government personnel. Many government websites offer a low cost, quick and convenient way of filing tax returns, paying bills, renewing licenses, signing up for programs, applying for permits or funding, submitting job applications as well as performing a wide variety of other activities.

The Americans with Disabilities Act (ADA) and, if the government entities receive federal funding, The Rehabilitation Act of 1973 generally require that state and local governments provide qualified individuals with disabilities equal access to their programs, services or activities unless doing so would fundamentally alter the nature of their programs, services or activities, or would impose an undue burden.  One way to help meet these requirements is to ensure that government websites have accessible features for people with disabilities.

When Congress enacted The Americans with Disabilities Act (ADA) in 1990, the public Internet did not exist. Due to extensive lobbying by groups representing people with disabilities, the U.S. Department of Justice (DOJ) proposed rules mandating that all state and local government websites be accessible to those with disabilities.” Previously the term applied only to physical spaces such as brick and mortar stores and recreational facilities.

The U.S. Dept. of Justice recently stated, “Websites that do not accommodate assistive technology can create unnecessary barriers for people with disabilities, just as buildings not designed to accommodate individuals with disabilities can prevent some individuals from entering and accessing services … Although the Department has been clear that the ADA applies to websites of private entities that meet the definition of ‘public accommodations,’ inconsistent court decisions, differing standards for determining digital accessibility and repeated calls for Department action indicate remaining uncertainty regarding the applicability of the ADA to websites of entities covered by title III. For these reasons, the DOJ plans to propose amendments to its regulation so as to make clear to entities covered by the ADA their obligations to make their websites accessible.”

Section 508

Section 508

In 1998, Congress amended the Workforce Rehabilitation Act to require federal agencies to make electronic and information technology accessible to people with disabilities. Inaccessible technology interferes with an individual’s ability to obtain and use information quickly and easily. Section 508 was enacted to eliminate barriers in information technology, to make available new opportunities for people with disabilities, and to encourage development of technologies that help achieve these goals.

The law applies to all federal agencies when they develop, procure, maintain or use electronic and information technology. Under Section 508 (29 U.S.C. §794d), agencies must give disabled employees and members of the public access to information that is comparable to the access available to others. Subsequently, most states have adopted similar digital accessibility standards for their procurement needs.

Section 508 requires the Department of Justice to report to the Congress and the President bi-annually on the federal government’s progress in complying with Section 508. Consequently, Section 508 testing documentation becomes part of the procurement’s contracting file in order to justify purchasing decisions.

Contractors selling Electronic Information Technology (EIT) to the Federal government are responsible for designing and manufacturing Section 508 compliant products and services.  In short, Section 508 compliance is the government contractor’s problem until it sells its EIT to a government agency.  Then it becomes the agency’s problem and the contractor’s liability.

W3C Web Content Accessibility Guidelines (WCAG)

World Wide Web Content Accessibility Guidelines

The W3C Web Content Accessibility Guidelines (WCAG) covers a wide range of international standards for making Web content accessible to people with disabilities. Following these guidelines will make content accessible to a wider range of people with disabilities, including blindness and low vision, deafness and hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities, photosensitivity or combinations of these. Following WCAG guidelines will also make your Web content more usable to users in general.

Although it is possible to conform either to WCAG 1.0 or to WCAG 2.0 (or both), the W3C recommends that new and updated content use WCAG 2.0. The W3C also recommends that digital accessibility policies reference WCAG 2.0.

Section 503

United States Labor Office of Federal Contract Compliance Programs

The W3C Web Content Accessibility Guidelines (WCAG) covers a wide range of international standards for making Web content accessible to people with disabilities. Following these guidelines will make content accessible to a wider range of people with disabilities, including blindness and low vision, deafness and hearing loss, learning disabilities, cognitive limitations, limited movement, speech disabilities, photosensitivity or combinations of these. Following WCAG guidelines will also make your Web content more usable to users in general.

On August 27, 2013 the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced a Final Rule that makes changes to the regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 CFR Part 60-741. Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities (IWDs), and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals. The Final Rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire IWDs, and improve job opportunities for individuals with disabilities. The Final Rule also makes changes to the non-discrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.

The Final Rule was published in the Federal Register on September 24, 2013, and became effective on March 24, 2014. However, current contractors with a written affirmative action program (AAP) already in place on the effective date have additional time to come into compliance with the AAP requirements. The compliance structure seeks to provide contractors the opportunity to maintain their current AAP cycle.

Highlights of the Final Rule:

Utilization goal: The Final Rule establishes a nationwide 7% utilization goal for qualified IWDs. Contractors will apply the goal to each of their job groups, or to their entire workforce if the contractor has 100 or fewer employees. Contractors must conduct an annual utilization analysis and assessment of problem areas, and establish specific action-oriented programs to address any identified problems.

Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of IWDs who apply for jobs and the number of IWDs they hire. Having this data will assist contractors in measuring the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.

Invitation to Self-Identify: The Final Rule requires that contractors invite applicants to self-identify as IWDs at both the pre-offer and post-offer phases of the application process, using language prescribed by OFCCP. The Final Rule also requires that contractors invite their employees to self-identify as IWDs every five years, using the prescribed language. This language will be posted on the OFCCP website (coming soon).
Incorporation of the EO Clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. The mandated language, though brief, will alert subcontractors to their responsibilities as Federal contractors.

Records Access: The Final Rule clarifies that contractors must allow OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at OFCCP’s option. In addition, the Final Rule requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.

ADAAA: The Final Rule implements changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 by revising the definition of "disability" and certain non-discrimination provisions of the implementing regulations.

Section 504

Section 504 of the Rehabilitation Act of 1973, Pub. L. No. 93-112, 87 Stat. 394 (Sept. 26, 1973), codified at 29 U.S.C. § 701 et seq., is American legislation that guarantees certain rights to people with disabilities. Section 504 is widely recognized as the first civil-rights statute for persons with disabilities. It took effect in May 1977. Because it was successfully implemented over the next several years, it helped to pave the way for the Virginians with Disabilities Act in 1985 and the 1990 Americans with Disabilities Act.

Section 504 states (in part):

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

Codified as 29 U.S.C. 794. According to this law, Individuals with Disabilities are:

"Persons with a physical or mental impairment which substantially limits one or more major life activities."

Where

"Major life activities include caring for one's self, walking, seeing, hearing, speaking, breathing, working, performing manual tasks, and learning."

However, "For purposes of employment", Qualified Individuals with Disabilities must also meet "normal and essential eligibility requirements", such that:

"For purposes of employment, Qualified Individuals with Disabilities are persons who, with Reasonable Accommodation, can perform the essential functions of the job for which they have applied or have been hired to perform."

Where

"Reasonable Accommodation means an employer is required to take reasonable steps to accommodate [one's] disability unless it would cause the employer undue hardship."

That is, Qualified Individuals with Disabilities must be able to perform the job duties associated with the job for which they would be hired. The USA Department of Labor also indicates that "Small Providers" do not have to make "significant structural alterations to their existing facilities" to accommodate the individual with the disability.

"The ADA (Americans with Disabilities Act) was passed in 1990, and seems to pick up where the Rehabilitation Act left off. Borrowing from the §504 definition of disabled person, and using the familiar three-pronged approach to eligibility (has a physical or mental impairment, a record of an impairment, or is regarded as having an impairment), the ADA applied those standards to most private sector businesses, and sought to eliminate barriers to disabled access in buildings, transportation, and communication. To a large degree, the passage of the ADA supplants the employment provisions of §504, reinforces the digital accessibility requirements of §504 with more specific regulations".

The broad reach of Section 504 is implied in the statutory language above. Section 504 covers "any program or activity receiving Federal financial assistance". Federal funds underwrite airports all over the country - it is no accident that airports were among the first American facilities to become fully accessible. Federal funds also flow to some 3,000 colleges and universities nationwide, typically in the form of grants and cooperative agreements, but also through financial assistance for students. Colleges, universities, and community colleges became accessible in the late 1970s and early to mid-1980s because of Section 504.

Section 255

US Federal Communications Commission

Section 255 of the Communications Act, as amended by the Telecommunications Act of 1996, requires telecommunications products and services to be accessible to people with disabilities. Manufacturers must ensure that products are “designed, developed, and fabricated to be accessible to and usable by individuals with disabilities” when it is readily achievable to do so. Accessibility guidelines issued by the Board under Section 255 address the telecommunications products covered including:

The Federal Communications Commission (FCC) is responsible for enforcing the Communications Act and has issued regulations that contain requirements based on the Board’s guidelines.

PDF accessibility

Adobe PDF

PDF documents are often part of web-based information or used for online support documents. Therefore, under Section 508 and WCAG standards, it is critical to ensure all PDF documents made available to end users can be accessed by people with disabilities using assistive technologies.

PDF documents and forms can vary from simple to complex and low volume to high volume. Therefore, the use of digital accessibility testing software is generally ineffective.  Almost all documents and forms require expert human testing to ensure they are properly structured, tagged and read properly using assistive technologies such as the JAWS screen reader, Dragon Naturally Speaking, ZoomText and keyboard only navigation. 

Additionally, many federal agencies, including HHS, CMS, VA and OPM, have developed their own specific requirements for accessible documents.  Expert knowledge of each of these sets of requirements is essential to ensure the digital accessibility compliance of online documents under the terms of your contracts.

Note: In 2007, Criterion was awarded “Innovator of the Year” by Xplor (The Electronic Document Systems Association) for the creation of our comprehensive digital accessibility testing and repair methodology for complex and high volume documents.

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