In a world where brick-and-mortar businesses are traded in for an online presence, the realm of accessibility challenges is continually evolving. Your company needs to change the way they think about accessibility, including whether your current insurance covers ADA claims. It’s time to start considering questions like: Are your websites and applications compatible with screen readers and other assistive technologies? Are your videos captioned?
Making websites and applications more accessible will be a benefit not only to those with disabilities, but also to other users. For example, cleaning up crowded pages with too much content makes it easier for screen-reading technology to adequately convey information and also generally improves readability for everyone.
The DOJ plans to release guidelines on online accessibility in 2018. In the meantime, companies should review and implement the Web Content Accessibility Guidelines 2.0 (WCAG) published by the World Wide Web Consortium.
Insurance and ADA Claims
In 2016, over 250 ADA lawsuits were filed related to the accessibility of a website or application. Because the digital world is an ever-changing landscape, companies should be sure that their insurance policies cover ADA claims. Some policies might only cover portions of an ADA claim, such as defense costs, while excluding remediation costs. As always, it is important to examine the language of your policies and know what exactly is included and excluded from coverage.
Employment Practices Liability Insurance (EPLI) typically covers claims by an employee, but may not cover ADA claims brought by a customer. However, third-party EPLI coverage is built into many EPLI policies and can cover ADA claims brought by a customer. It is worth examining your EPLI insurance before your next renewal, particularly if you have significant operations in California, where federal ADA and equivalent state statutory claims are routinely filed.
Another limitation to watch out for is your policy’s definition of “claim.” If the policy defines a claim as a “demand for monetary damages,” that could pose a problem when trying to obtain coverage in a case where a person is requesting reasonable accommodations and not money damages.
Defending an ADA claim, particularly in the context of proposed class action claims, can be the most costly part of the battle, and where a business needs support from its insurer the most. Here again is where it pays to review your policy before renewal to make sure it is implicated by demands for both monetary and non-monetary relief. Under those circumstances, there is a better chance for coverage of not only your defense costs, but also of any attorneys’ fees you must pay to the other side, even though there generally will not be coverage for the costs required to make your website and/or customer interface ADA-compliant.
If the ADA claim arises from a company’s website, there is also potential for at least some recovery under a company’s media liability insurance. While many media policies exclude discrimination claims (thus barring ADA causes of action), other media policies contain narrower exclusions, limited to only employment-related discrimination. This would allow recovery for ADA claims brought on the basis of the accessibility of a website.
In light of the high risks facing businesses in California, where plaintiffs are testing new grounds for accessibility allegations, as well as elsewhere, you would be well-served to do at least two things to protect your business: (1) check your EPLI and media policies before renewal to confirm that they are broad enough to address the defense of ADA claims, and (2) if you are on the receiving end of an allegation, check your EPLI and media policies thoroughly, and tender the claim if there is any possibility of coverage.