Balancing ADA Title II Exceptions and Patron Needs

In this Section:

The rule lays out the following five exceptions to reduce the burden of compliance for public entities. However, it’s best to think of these exceptions as guidelines to help your library prioritize accessibility work and not for “what online content can we ignore.”

Exceptions overview

If an exception applies, the web content covered by that exemption does not need to immediately comply with WCAG 2.1 Level AA by the deadline. Consider the criteria listed below as strict. All criteria have to be met for an exception to be granted. If one criteria is not met, the content has to come into compliance within the deadline.

Section 35.201 Exceptions

  • Archived web content, or web content that–
    • Was created before the date the public entity is required to comply with subpart H of this part, reproduces paper documents created before the date the public entity is required to comply with subpart H, or reproduces the contents of other physical media created before the date the public entity is required to comply with subpart H; and
    • Is retained exclusively for reference, research, or recordkeeping; and
    • Is not altered or updated after the date of archiving; and
    • Is organized and stored in a dedicated area or areas clearly identified as being archived.
  • Pre-existing conventional electronic documents, unless such documents are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities.
    • Definition of conventional electronic documents: web content or content in mobile apps in the following electronic file formats: portable document formats (“PDF”), word processor, presentation, and spreadsheet file formats. This is not a list of examples; this is the entire list of documents that fall under this exception.
  • Content posted by a third party, unless the third party is posting due to contractual, licensing, or other arrangements with the public entity.
  • Individualized, password-protected or otherwise secured conventional electronic documents. Conventional electronic documents that are:
    • About a specific individual, their property, or their account; and
    • Password-protected or otherwise secured.
  • Pre-existing social media posts.

Existing requirements and exceptions for ADA Title II

Reasonable modifications and effective communication

The exemptions in the updated regulation do not override the existing obligations that public entities have under Title II to make reasonable modifications, and provide effective communication on an individual basis. This means that libraries still need to make accessible material available upon request, even if the web content is subject to an exception.

“The Department emphasizes that, even if certain content does not have to conform to the technical standard, public entities still need to ensure that their services, programs, and activities offered using web content and mobile apps are accessible to individuals with disabilities on a case-by-case basis in accordance with their existing obligations under title II of the ADA. These obligations include making reasonable modifications to avoid discrimination on the basis of disability, ensuring that communications with people with disabilities are as effective as communications with people without disabilities, and providing people with disabilities an equal opportunity to participate in or benefit from the entity’s services, programs, and activities.”

Source: Final rule

Fundamental alteration and undue burden

Web content must be compliant with existing Title II requirements unless compliance would newresult in:

Fundamental alteration in the nature of a service, program, or activity, or

Undue financial and administrative burdens

Public entities have an option to rely on Title II's fundamental alteration and undue burdens limitations, if the public entity can demonstrate that compliance with the regulations “would result in a fundamental alteration in the nature of a service, program, or activity or in undue financial and administrative burdens.” In that case, the public entity is required to take action to ensure that people with disabilities receive the benefits or services provided by the public entity to the maximum extent possible.

For more information on undue burden and fundamental alteration, visit ADA Update: A Primer for State and Local Governments (February 2020).

Excepted content may shift

When you start your compliance journey, you may have content that falls under these exceptions. However, if the needs of your library or your patrons change, the exception may cease to apply. Note a key phrase in electronic documents exception — “unless such documents are currently used to apply for, gain access to, or participate in the public entity's services, programs, or activities.” In these instances, an exempted document would have to come into compliance.

For example, if a scanned historic document becomes part of a new online history exhibit, or if it is selected as required reading by a teacher or professor at your institution, then it is no longer exempt and needs to be made accessible. Similarly, if an archived website content needs updating, then the entire site needs to become accessible. As such, you might instead import just the content needed into an active compliant website.

Frequently Asked Questions

Q. How do the regulations apply to online tools of libraries, such as online room reservation systems?

A. It applies to all online content and applications for the public to engage in library services, activities, and programs. That includes reservation systems where a patron can reserve the room or otherwise directly engage with the system.

Q. The exception for materials that are archived for reference is confusing. Does that mean all our reference materials don't need to be accessible?

A. The exception for archived web content is not to be confused with “digitized archival content”. 

Review the potential archived web content’s exception criteria:

  • The original content was created before the deadline or reproduces analog content that was originally created before the deadline
    • e.g. if in 2028 you are scanning a document from 2021, that document would meet this criteria as the date you will use is 2021.
  • Content is kept only for reference, research, or record keeping.
    • This includes for research libraries who have digitized archival content, unless that content is being used in something new like an exhibit or course.
  • The content is in a special area specifically designated and labeled as “archive”
    • (e.g. a website for archival digital content may count if it is clearly labeled “Archive”; or a blog can move older posts to an “archive” section of the website if that content is only kept for reference, research, or recordkeeping)
  • The content has not been changed.
    • Many digitized archival websites may not edit the scanned items but will more likely update the metadata. Because of this, it’s unclear whether digitized archival websites meet this criteria.

Based on this, some digitized archival collections may meet the requirements. Other collections such as thesis repositories are not likely to meet this as they aren’t often labeled as “archive” and will have content that is created after the deadline.

Also note that a digital archive website may not meet these requirements if other aspects of the website do get updated, such as the interface or metadata.

Q. The pre-existing documents exemption states that documents are not exempt if "such documents are currently used to apply for, gain access to, or participate in the public entity’s services, programs, or activities." How should libraries interpret this clause? 

How should we define the entity? For instance, are the activities for the library or the university for this definition? If it’s the library, does the library or archive’s primary purpose of enabling their patrons to do research alter how we should interpret the rule?

A. The services, programs, or activities of both the university and the library are to enable access to information, perform research, and take courses towards earning a degree. 

However, generally the "public entity" is the largest legal body a unit is associated with. In this example, it is likely at the university level. This is important for other reasons, such as who has the authority to declare undue burden or fundamental alteration. That will be at the university level, not the library, in an academic library setting. 

If an archive does not meet the four criteria for "archived web content" (which includes that the content is kept for reference, research, and record keeping), and the library is considering the second exception for pre-existing conventional electronic documents, it is not likely that content provided through the archive will meet the second exception because they are often retained for participating or gaining access to services, programs or activities of the university.

Q. If an academic library hosts digital scholarship websites for faculty, would all these sites need to meet ADA standards because they're hosted by the college/university or only those being used in university instruction? 

For example, if a creative writing professor's website is sharing their personal work to their professional community, but they are not using the site for their teaching. We assume sites used for instruction, a primary purpose of a college, would need to be brought up to standards.

A. A public entity's web content and mobile applications must meet WCAG 2.1 level AA. If the website is a part of the university's domain, or a part of the paid employee's work for the university, it falls within the scope of a public entity's web content. 

If arguing whether it should meet some exception, the library will need to review all the criteria for each exception. Generally all of these websites need to meet accessibility standards (they are a part of gaining access to or participating in the university's programs, services, and activities).

Q. Does web content on an intranet serving employee teams within a library need to abide by the enforcement date as resources for the public?

A. If the intranet is public, yes. If the intranet is hosting content that the public needs access to (such as policies), then yes. 

If it is for internal use only with no public access, it will not be a Title II requirement but may likely fall under other legal requirements including likely ADA Title I or the Rehabilitation Act of 1973 (Section 504 or Section 508, which has required WCAG 2.0 level AA compliance since 2018). 

If the library is concerned about Title II scrutiny, an intranet may be given lower priority than content more clearly under ADA Title II.

Q. What documents in a digitized archive need to be accessible? 

How would the exceptions apply to these pre-existing documents if the purpose of the documents is for research at a university archive or public library local history department as historic archival content is digitized for research purposes and frequently stored in PDF documents? Does the document content make a difference — such as a scan of a historic newspaper versus historic city council meeting minutes?

A. Check them against the four criteria for "archived web content". A digitized archive does not necessarily equal web content that has been archived. 

However, if the content is outdated or historic and only being used for reference, research, or recordkeeping (and meets the other criteria), then whether newspaper or meeting minutes, they could fall within the exception. If the website gets interface and metadata updates, it’s less likely to fall within the exception.

If the content is being used for more than reference, research, or recordkeeping, then it will not meet all 4 criteria. Activities like including the document in something new like an exhibit or a course, would disqualify it from the exception. But if only there for research purposes, the document would meet the exception.

Q. How would the pre-existing documents exemption apply to individual content items stored in an institutional repository that collects, preserves, and disseminates digital copies of the intellectual output of an institution for research purposes? 

For instance, academic journal articles written by a university’s faculty. This content is frequently contributed directly by the creators and some content is decades old.

A. The pre-existing conventional electronic documents clause has two primary criteria and a caveat. The document must be in a specific format (word processing, presentation, PDF, or spreadsheet file) and made available prior to compliance. 

However, the caveat is: "Documents that are currently being used to apply for, access, or participate in a state or local government’s services, programs, or activities do not fall under the exception even if the documents were posted before the date the government has to comply with the rule." 

With this, the majority of content produced by an academic community and shared is unlikely to meet the exception. The exception is truly aimed at materials that are no longer relevant but are left online; an institutional repository has content that is a part of a university's programs, services, and activities.