May 13 2019

The Notice-and-Cure Bill Impact on Website ADA Lawsuits

website ADA notice and cure billRecently, it emerged that lawmakers in New York were planning to create and pass a ‘Notice and cure’ law in order to curb the dramatic rise in website accessibility lawsuits in the state. New York has good reason to look into legislation. When it comes to website accessibility lawsuits, New York alone accounted for over 2/3 the number of lawsuits in 2018 – nearly 1,600 of over 2,250 lawsuits. A lot of these lawsuits were nothing more than glorified shakedowns, but many of them weren’t. So, how do you ensure that you cut down frivolous lawsuits while still providing an avenue for persons with disabilities to file fair grievances? One way is through what is called a ‘Notice and cure’ bill.

What is a notice and cure bill?

The idea behind the “notice and cure” law it is twofold:

  • Businesses must be given notice of specific website ADA violations

  • Before the website ADA lawsuits can continue, the business has to be given time to remedy the issues on their own.

The theory is that this would discourage less scrupulous lawyers from trying to make a quick buck, while providing an avenue for persons with disabilities to get the roadblocks eliminated. Of course, it’s not without its problems. For one, it de-facto requires the plaintiff to fund the lawsuit, since getting financial redress will be much more unlikely. Furthermore, the laws tend to tack on other, more punitive provisos such as:

  • The person with disabilities must pursue the action and must not have been offered compensation for filing.

  • Giving the court the power to label a litigant troublesome and stay the ADA action.

What if the notice and cure bill becomes law?

Where New York’s Notice and Cure bill will fall is not known yet. But what does a business need to do to prepare for if a Notice and Cure bill becomes law? The easiest way to look at business needs is to walk through a potential scenario.

  • Company A has a website that is their main source of customer interaction and/or revenue.

  • Company A receives a notice from a law firm representing a real person with disabilities that claims there are significant roadblocks to using the website.

  • Under the new law, they may be required to show precisely what these roadblocks are, but at the very least, expect a list of WCAG 2.1 Level AA violations.

  • Defendants are likely going to be given time to verify the claims (~60 to 120 days).

  • If claims are valid, defendants have another period to rectify the issues.

  • Failure to do so means the case can go forward.

Unfortunately, there’s a lot of vagueness in this. What about the fact that websites are inherently things that change constantly? A year is a long time in the web world. You can unintentionally publish a lot of new pages with issues. Will that matter when it’s time to review the fixes? How do you prepare for this?

Keeping a website ADA conformant

The answer is much the same as it was before: Redesign your site with a company that knows how to build a WCAG 2.1 AA conformant site and KEEP it conformant. This solves all of the problems a ‘Notice and Cure’ request may create. You take care of the original issues, other issues that were not caught and any future issues that happen during the 6 months to a year you are given to rectify the issues. By doing so, you not only meet the needs of the plaintiff (and thus the lawsuit), you restrict the chances of future lawsuits and provide a site that actually works for your entire customer base – disability or not.

If you’ve received a notice and cure notification…

If you are reading this because you’ve gotten a notice and cure notification, you’re probably wondering what to do. First, find out if the issues are real. Chances are most of them are, but some may be ‘false positives’, and furthermore, some may be issues outside of your control, or so-called ‘third party’ issues. For example, you can embed Google Maps on a page of your site, but you can’t legally guarantee the data Google returns will be conformant.

After that, you need to schedule a timeline to make the changes. This will depend entirely on what is already scheduled and what you are choosing to do. If you are fixing the known issues, this may take less time that redesigning the site. But be warned, if your site is large and particularly navigation and form heavy, it may take longer to fix your site than simply starting from scratch. You need to come up with a real-world estimate with a qualified digital agency, and this may have to go to your legal team to help decide what is going to be best for your business.

Third, you’ve got to find a company you trust to fix it. If you have your own in-house designers and developers, you may not need a company to redesign and build your website, but you will likely need one to check your designs for WCAG color violations, train your developers, and test and verify the ADA-related fixes. If you don’t have in-house team, then you need a company that can do it all.

Finally, after fixing and launching, you’ll want to contract some way to verify that your website stays in compliance, such as ongoing website ADA scanning and reporting. This is less of an expense than making your site conformant in the first place, but failure to do this can put you right back in legal and user experience hot water.

To discuss your website ADA questions and concerns, talk with a ZAG Interactive website ADA specialist.

Disclaimer: This article has been prepared by ZAG Interactive to provide information of interest to our readers. It is not intended to provide legal advice. Please consult your own legal or compliance team for specific questions and concerns.

  • Regs & Legislation
  • Website Compliance

ZAG Interactive is a full-service digital agency in Glastonbury, CT, offering website design, development, marketing and digital strategy to clients nationwide. See current job openings.
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