In the proposed rule, the DOJ anticipates a number of exceptions to the accessibility requirements. As further detailed in a fact sheet published by the DOJ, the following digital content would be exempt from the proposed rule, subject to certain limitations:

• Archived web content
• Pre-existing conventional electronic documents
• Content posted by a third party
• Linked third-party content
• Public schools’ password-protected course content for courses not made available to the general public
• Individualized documents that are password protected

The proposed rule states that the exceptions would not apply in all circumstances. For example, the exceptions would not apply to pre-existing documents or third-party content used by a public entity to allow members of the public to participate in its programs, or to password-protected content when an individual needs that content to be accessible because of a disability.

For content that does not fall within one of the above exceptions, the DOJ has proposed that public entities comply with the regulations according to the following schedule:

• Entities with 49,999 or fewer employees – three years after publication of the final rule
• Special district governments – three years after publication of the final rule
• Entities with 50,000 or more employees – two years after publication of the final rule

By initiating formal rulemaking on website accessibility for public entities, it seems likely that the DOJ could undertake future efforts to initiate formal rulemaking for privately owned places of public accommodation under Title III of the ADA as well. Accordingly, the outcome of these rulemaking efforts should be followed closely by Title III entities wanting to ensure that they are best positioned to address digital accessibility and avoid future disputes.

Client Alert 2023-179