Companies are becoming more aware of the need for their websites to be accessible to people with disabilities. But what does this mean and what are the legal requirements?  The current state of the law is in flux and the fact is, there is no clear set of criteria to which a company can look with assurance for the prerequisites of a fully and legally accessible website.  That said, there are some steps a company can take to reduce its exposure to an ADA claim.

Website accessibility means that there are no barriers that prevent interaction with or access to the website by people with disabilities.  The objective is to design a website that all users, regardless of disability, have equal access to the information and functionality of the website.

There are many disabilities that can be implicated in viewing a website.  For example, individuals with visual disabilities such as blindness or colorblindness can be challenged in looking at websites.  Individuals who are deaf or have other hearing impairments can have problems if the website includes listening to audio.  A website which includes strobes or flashing can trigger a seizure in people with seizure conditions.  There are also a variety of developmental disabilities such as dyslexia, memory, attention and executive function disabilities which can be challenged when looking at a website.

The ADA prohibits discrimination on the basis of disability by public accommodations and requires that goods, services, privileges, and activities offered by a public accommodation must be accessible to disabled individuals.  Organizations such as the National Association of the Deaf have brought class action suits alleging that organizations discriminated against disabled individuals by failing to provide “auxiliary aids or services” (a requirement under the ADA) in online and digital tools.

The Problem

The U.S. Department of Justice issued proposed regulations concerning the accessibility of online and digital resources several years ago.  These proposed regulations would have provided objective criteria for compliant websites.  However, on December 26, 2017, the Department of Justice withdrew these proposed regulations.  Companies want to be compliant with applicable legal requirements, but when it comes to website accessibility, there are no definitive technical standards.  There is not a checklist a company can follow to confirm its website complies with the ADA.  One set of guidelines often used are the Web Content Accessibility Guidelines (WCAG 2.0).  However, the Department of Justice has stated that noncompliance with any voluntary technical standard (such as WCAG 2.0) does not mean a website violates the ADA, nor does compliance with a voluntary technical standard mean there is compliance.

What Should a Company Do?

We recommend that companies assess their websites using tools such as the WCAG 2.0 to determine if their websites are accessible to disabled individuals.  In many cases, to enable and assist web browsing, the addition of various assistive technologies may be necessary.  This evaluation can be performed by outside consultants or internal staff who are familiar with the WCAG 2.0 and other tools that assist in determining if a website is accessible.

Even with such evaluation and resulting modifications, there is no certainty that the website complies with the ADA.  Ignoring the issue is not an option.  Even though a company may not have certainty that its website complies with the ADA, the company’s good-faith efforts to become compliant and explore assistive technologies can be critical in the event of a legal claim.

Many business open to the public are seeing an increase in the number of service animals being brought into public businesses. There has been a lot of media attention to airline passengers who bring animals onto an airplane as service animals or to provide emotional support or therapy. The same issue can arise in the workplace.

The Equal Employment Opportunity Commission (EEOC) sued CRST Expedited, Inc., a national trucking company, last year alleging that CRST violated the Americans with Disabilities Act (ADA) when it failed to accommodate, refused to hire and retaliated against a job candidate because he used a service dog.

Service, Emotional Support and Comfort Animals

A service animal is defined as an animal that has been individually trained to do work or perform tasks for an individual with a disability. In order to qualify, the task performed by the service animal must be directly related to the person’s disability. Most often a dog is used as a service animal. For example, a blind worker may use a seeing-eye dog to guide the worker in moving around or a service animal may be trained to remind an employee to take medication for diabetes or depression.

An emotional support or comfort animal is an animal which, as part of a medical treatment plan, is intended to provide comfort, reduce loneliness, and/or assist with symptoms of depression, anxiety and other mental illnesses.

A worker can request that an employer make a reasonable accommodation by allowing the worker to bring an animal into the workplace. This animal may be a service animal or a comfort animal/emotional support animal. Under the ADA, an employee who has an impairment that “substantially limits” the individual’s ability to do essential tasks has the right to request an accommodation that helps them to do their job. The ADA requires that an employer engage in an interactive dialogue with an employee requesting an accommodation, which could include the right to bring an animal into the workplace.

In the CRST case, Leon Laferriere applied for a truck driver position and signed up for a driver’s certification course offered by a CRST partner training company. Laferriere uses a trained service dog to help control anxiety and to wake him from nightmares caused by post-traumatic stress disorder resulting from his military service. Laferriere disclosed his disabilities and his use of a trained service dog. He completed the training program but was denied the opportunity to continue through the orientation program because CRST has a “no pet” policy. The EEOC alleges that using a trained service dog can be a reasonable accommodation.

Employer Response to a Request to Bring an Animal into the Workplace

When an employee requests to be allowed to bring an animal into the workplace, the employer can request medical documentation verifying the claimed disability and explaining why having an animal in the workplace would help them. The employer must engage in an interactive dialogue with the employee concerning the request and discuss alternatives if the requested accommodation is not feasible. The employer must assess the working environment and determine whether having an animal in the workplace would constitute an undue hardship, thereby legally permitting the employer to deny the request. Some workplaces are regulated by state or federal laws which would prohibit bringing in animals into the workplace (such as health care or the manufacture or sale of food).

Whether or not allowing a service, comfort or emotional support animal in the workplace constitutes an undue hardship depends on the type of workplace, cleanliness standards, whether a workplace could place an animal in danger, interferes with other employees’ abilities to do their work.

As with other reasonable accommodations, an employer must maintain confidentiality about an employee’s disability. This can become complicated when other employees will have to interact with the animal. The employer may want to ask the employee to discuss this issue with other employees. If the employee does not feel comfortable, the employer could ask the employee to provide instructions which can be given to other employees. The EEOC would allow an employer to tell coworkers that “we are emphasizing a policy of assisting any employee who encounters difficulties in the workplace.” The employer also may find it helpful to point out that many of the workplace issues encountered by employees are personal, and that, in these circumstances, it is the employer’s policy to respect employee privacy. An employer may be able to make this point effectively by reassuring the employee asking the question that their privacy would similarly be respected if the employee found it necessary to ask the employer for some kind of workplace change for personal reasons.

The most important thing an employer can do when faced with a request to bring a service or therapy animal into the workplace is to refrain from immediately saying no. The employer should engage in interactive dialogue and at least give serious consideration to whether bringing an animal into the workplace constitutes an undue hardship.