If your agency provides website development or maintenance services to clients, you may be wondering whether your agency is responsible for ensuring the websites it creates meet the Americans with Disabilities Act (ADA) accessibility requirements.  Or you want to know how to minimize this responsibility.

You’re not alone.

Demand letters and lawsuits, claiming website accessibility violations are increasing, and clients are quickly waking up to the realization that website accessibility is a real concern for their online presence.  It’s clear at this point that taking proactive steps to include those with disabilities in a business’ digital experience is critical to avoiding (or mitigating) a website accessibility dispute. More importantly, it’s the equitable and inclusive thing to do.

But while some web development agencies include ADA compliance services as part of their offerings, most marketing agencies simply don’t have compliance expert coders on staff to be able to provide this sort of specialized service.  And that’s ok.   It’s complicated.

Underlying this complexity is the fact that federal regulations about website accessibility are unclear and indefinite.  The Department of Justice, the arm of the government tasked with enforcing the ADA, has refused to issue official rules, or even guidelines.  Instead, it allows “flexibility” in how website owners can come into compliance.

Not very helpful when your agency is in the thick of a website build.

Currently there is a general consensus that a website can meet accessibility requirements  if it incorporates the Web Content Accessibility Guidelines (WCAG) published by the World Wide Web Consortium, an international organization of accessibility advocates and experts that have developed (and update) web accessibility standards.

The WCAG is a set of very technical and complicated standards, drafted with technical specialists in mind. Agencies that take on the responsibility for following the standards usually charge a premium for their services – as they should. They also tend to invest in higher liability insurance policy limits, particularly for errors and omission coverage.

So, who then is liable for ADA website accessibility claims? 

Generally, the client, as the owner of the website, is ultimately responsible for making sure its site is accessible under the ADA, and therefore liable for violations.  Questions of whether that liability is shared or passed on to agencies that design or develop the websites will depend on the language of the service agreements in place between agency and client.

How do you limit or minimize the agency’s risk of liability for ADA website accessibility?

Agencies that do not offer this specialized service internally will typically deal with this issue in three ways:

1.  Tell the client at the start of the engagement that ADA compliance is outside the scope of work.

The first step to avoiding issues for your agency surrounding ADA compliance claims is to make clear to the client at the very outset that your scope of work does not include ensuring compliance with ADA website accessibility standards.

One way to do this is to include language in your proposals or statements of work for web development or maintenance services that clearly states ensuring the site is ADA accessible is not included in the scope of work.  Your client service agreements should also include language that makes it explicit that you are not responsible for such services nor for claims of ADA violations.

Additionally, if you’ve received a client’s proposed services agreement and decided you’ll sign it, you will want to watch out for, and push back any language that states you are “responsible for compliance with all laws.”  Although such a broad provision might not be enforceable to create specific ADA compliance liability for the agency, you nevertheless want to place the client on notice that legal compliance in general does not mean meeting ADA requirements specifically.

2.  Get Indemnification from the Client

In addition to making sure client agreements exclude responsibility for ensuring ADA compliance, include language in the service agreement that requires the client to indemnify the agency (hold the agency harmless) from any third-party claims based on accessibility violations.  This further places the client on notice that not only are they the ultimate responsible party, they may also be obligated to defend the agency, and pay for any damages assessed against it, if an ADA violation claim were brought against the agency.

3.  Form Strategic Partnerships with Experts

Lastly, many agencies have developed relationships with third-party partners who specialize in compliance as a referral source or a strategic partner.  There are also a variety of companies offering an overlay service that may provide a less costly and quicker option that you and your client can explore.

What should you do if a client comes to you after receiving a demand letter? 

Unfortunately for many clients, the receipt of a demand letter alleging website accessibility issues is the first time they are placed on notice of their responsibilities under the ADA.

If a client approaches your agency with the demand letter, they may simply be looking for guidance on how to come into compliance.  Here you’ll have the opportunity to bring in your third-party strategic partner or provide a referral to a third-party overlay provider or other specialist.

However, if your client is looking to share the responsibility (or avoid it altogether), it will be important to be able to point to your service agreement to show that such work was expressly excluded from the scope of services (best case), or that such work was never expressly included nor offered as a service by the agency.  The good news for the agency is that without a specific and express undertaking to include ADA compliance services, a client will have a much tougher battle displacing responsibility on the agency for liability under the ADA.

Ultimately, the best practices here involve transparency and communication –  have the ADA accessibility conversation up-front so everyone is clear about responsibility before the site is built, not after a demand letter or lawsuit is received.

Having a frank discussion about ADA requirements will not only help place your client on notice and orient it to its own responsibilities, but it can also lead to new partnerships and opportunities, as well as help move the digital world in the direction of providing a better and more inclusive online experience for everyone.