ADA Compliant Websites

08/15/2017

Is Your Insured’s Website Compliant with the Americans with Disabilities Act?

In 1990, the Americans with Disabilities Act (ADA) was signed into law to give disabled people the same access to American life as those without disabilities.  The Act is intended to give equal access to all Americans to all public spaces.  The law was initially thought of as only applying to brick and mortar locations and couldn’t address access to the Internet, since the Internet wasn’t fully commercialized until 1995.  However, in response to a landmark case in Florida (Gil v. Winn Dixie), the court declared that Title III requirements of the law apply if the website is ‘heavily integrated’ with and serves as a ‘gateway’ to physical stores/services. The verdict was entered on June 12, 2017.  As a result, companies are now finding themselves targets for ADA claims based on the inaccessibility of their websites and media by those who are disabled.  

Consider this example: A blind or visually impaired person is currently able to navigate some websites using a ‘screen reader’ which will convert the content to a useable format.  Their access could be audio or braille.  However, not all websites have this functionality that would give them equal access to online information. 

Another problem with some websites is the inability for keyboard navigation as an alternative to mouse navigation, which can be problematic for people with physical disabilities.  This can be mitigated by adapting websites to allow for keyboard navigation.

However, in both of these examples, the challenge is that the website must be set up with software that enables the disabled person to navigate the site.  Many, if not most, websites are not set up to handle this need.  An additional challenge for ADA and website compliance is that the regulations that determine the level of ADA compliance have not yet been finalized by Congress. 

The opening for ADA claims arising from website accessibility comes from several sources: job application procedures, hiring, firing, career advancement, job training, and use of online content.  The question now becomes, “Is this an insurable risk, and if so, where can I find insurance coverage?”

Initially, since it relates to access, an insured might think this is covered by their General Liability policy.  This is incorrect, as the personal/advertising liability does not extend to online access.
  
Since the claim appears to derive from the media the insured has put online, an insured might understandably think that the Media or Website Liability policy would be the answer.  However, the Media Policy may deny coverage for this type of claim. This denial will most likely be based on the fact that the medium itself is not the issue; rather, it is the functionality or performance of the website.  Media policies are generally designed to cover allegations of libel, slander, defamation, and copyright infringement.

Someone may look at a Professional Liability policy since this could be construed as a failure to provide a service.  That could be a challenge because the service is being provided, but not everyone can see it.  The claim may only address access and not the failure of a service, so that is not the ideal fix.  Also, there may not be a professional service being provided to the point where the client can buy an E&O policy.  

Another option could be Cyberliability coverage.  Some carriers have accepted ADA website claims on the basis that the claim can trigger their Privacy and Security Wrongful Act definition of “violations of laws that govern accessibility.” In some ways, this is similar to how some cyber markets will pick up Social Engineering, seeking to differentiate their products in a crowded marketplace.  However, due to the lack of a breach or loss of PII/PHI, it may be a stretch for Cyber coverage to respond.  

One insurance policy that can potentially provide some defense coverage would be Employment Practices Liability.  If an insured has Third-party Coverage, including Third-party Discrimination Coverage, it might be able trigger the EPL policy.  If an insured is providing something to the population at large, with the exception of the disabled, that could be alleged to be discriminatory towards the disabled.  The EPL policies do not cover the expenses to modify property to make it ADA compliant, but they do cover defense costs.  A similar approach would be expected if an EPL policy were to respond to these claims.

Even under the best of circumstances, the insured needs to consider the cost of upgrading their site to be ADA compliant.  Fixing the problem is always preferred over waiting for a claim to hit.  

Website compliance under the ADA will continue to evolve, especially considering the fact that official regulations have not come out yet. This issue only underscores the need for constant vigilance and understanding of a complex issue in the marketplace.
 


This article was authored by Charles Sharp, member of AmWINS National Professional Lines Practice.
Contact Us

To learn more about how AmWINS can help you place coverage for your clients, reach out to your local AmWINS broker.  If you do not have a contact at AmWINS, please click here.

Legal Disclaimer. Views expressed here do not constitute legal advice. The information contained herein is for general guidance of matter only and not for the purpose of providing legal advice. Discussion of insurance policy language is descriptive only. Every policy has different policy language. Coverage afforded under any insurance policy issued is subject to individual policy terms and conditions. Please refer to your policy for the actual language.

(c) 2017 AmWINS Group, Inc.

Most Popular Insights

5 Strategies for Successful Small Business Renewals During COVID

07/16/20

In the current economic climate, many small businesses are struggling and some may even fail. Despite these challenges and the continued hardening market, there is opportunity for retailers to write and retain business. This article provides guidance on navigating the complex small business marketplace and helps retailers fine tune their understanding of what insurable risks will look like over the next 12 to 24 months.

What Product Recall Insurance and Risk Mitigation Plan Is Right for Your Clients?

07/16/20

​Product recalls are one of the most damaging events a business may encounter. In order to effectively respond to an incident, companies must be prepared with proper risk management strategies. As policy wording varies, it's also critical to ensure your clients have the right policy type in place to appropriately address their first- and third-party exposures.

State of the Market - Q2 2020

06/15/20

Our Q2 2020 State of the Market report provides a holistic view of highly impacted industry segments as well as overall market trends. This report is designed to help our retailers gain the knowledge they need to retain accounts, write new business, overcome challenges and capitalize on opportunities that do exist.

10 Catastrophe Claim Tips for Severe Weather Season

05/27/20

Severe weather can be unpredictable and strike at any time. Help your clients be prepared in the event their property is damaged by a hurricane, tornado, hailstorm or similar disaster with these 10 catastrophe claim tips.

On-Demand Webinar: COVID-19 Economic Impact and Future Outlook

05/15/20

As a result of the COVID-19 crisis, our industry is facing a broad array of challenges that impact insureds of every size and in every industry. In the first of a series of webinars, we hear from an economist on the financial impacts of COVID-19 and what we can expect in the future. This webinar is intended to complement your conversations with clients about how to plan for the next 12 to 24 months.

Lloyd's CEO and Property Underwriters Share COVID-19 Response and Market Update

05/11/20

This podcast features an update from John Neal, CEO of Lloyd’s, on the state of the Lloyd's market and their response to COVID-19 as well as a panel discussion with London Property underwriters on how they view the pandemic's impact both the Property sector and their syndicate's business.

Lloyd's CEO and Casualty Underwriters Share COVID-19 Response and Market Update

05/11/20

This podcast features an update from John Neal, CEO of Lloyd’s, on the state of the Lloyd's market and their response to COVID-19 as well as a panel discussion with London Casualty underwriters on how they view the pandemic's impact both the Casualty sector and their syndicate's business.

Lloyd's CEO and Professional Underwriters Share COVID-19 Response and Market Update

05/11/20

This podcast features an update from John Neal, CEO of Lloyd’s, on the state of the Lloyd's market and their response to COVID-19 as well as a panel discussion with London Professional Lines underwriters on how they view the pandemic's impact both the Professional Lines sector and their syndicate's business.

Flood 101: What to Know About Standard Flood Insurance

04/28/20

Ninety-eight percent of all United States counties were impacted by a flood event in 2018, yet many property owners remain unaware of their true risk of flood or what their existing policies cover. This article highlights key statistics about flood risk and outlines the differences between the National Flood Insurance Program and private market flood insurance.

Professional Lines Challenges and Market Response During the COVID-19 Crisis

04/28/20

The COVID-19 crisis has created a rapidly changing environment for the Professional Lines market. With the uncertainty of how claims will develop and the potential for increased exposure, retailers must be proactive. In this article, AmWINS specialists share their insights on why this is more important now than ever, including reactionary underwriting trends, D&O policy exclusions and impacts to EPLI, as well as the threat for increased cyber attacks and crime losses.

Small Business and Personal Lines During the COVID Crisis

04/22/20

Loss of revenue caused by stay-at-home orders due to the coronavirus pandemic has affected small businesses and the insurance industry serving them significantly. As retailers and carriers prioritize their focus to adapt to the “new normal” of daily transactions, underlying market dynamics remain unchanged. In this article, our experts share their insight on the current changes that we are seeing the small business and personal lines market, and how to navigate the market a this time of uncertainty.

Mind the Gap: COVID-19's Impact on the Logistics Industry

04/15/20

The disruptive impact of the COVID-19 outbreak on supply chains is already having a pronounced effect on the world of logistics and logistics insurance. Port closures, demand surges and production shifts are requiring nimble response to keep up with change. This article arms insurance brokers with the information needed to understand the changes taking place and plan for what is likely to occur in the months ahead.

Navigating the Casualty Market’s Response to COVID-19

04/15/20

The Casualty market’s response to COVID-19 is continuously evolving. With a wide array of factors already impacting this sector pre-crisis, segments of the Casualty marketplace are responding to the pandemic differently. In this article, our industry specialists share overall themes in the Casualty market and take a closer look at how various segments are being impacted.

Top COVID-19 Issues Impacting Builder’s Risk Insurance

04/15/20

The COVID-19 pandemic is causing historical disruption to the construction industry. These changes mean that risk mitigation strategies need to be implemented or revisited, policy language should be reviewed, and carriers should be apprised of all changes at the work-site. In this article, AmWINS specialists examine the major areas of concern for Builder’s Risk insureds, including government-mandated shutdowns, supply chain-driven slowdowns and policy wording that could limit coverage, and provide guidance for retailers to achieve the best results for their clients.

State of the U.S. Logistics Insurance Market

04/10/20

For decades, the logistics insurance market has been considered a sub-market of the cargo or ocean marine market. However, the continual rise of e-commerce and its effect on the global supply chain has carved out a complex and expansive industry niche. This article provides insight into the various lines of coverage, the specialized underwriting approach, and rate surges within the U.S. logistics insurance market.

Lloyd’s & the London Market’s Response to COVID-19

04/06/20

During the COVID-19 pandemic, Lloyd’s remains open for business and syndicates have successfully transitioned to working from home. However, there are notable changes in how the London market is approaching business. In this article, specialists from THB, AmWINS’ London broker, share their insight on consistent themes across the London Market as well as updates on various lines of business.

COVID-19 Claims Advice

04/02/20

There have been a lot of questions regarding COVID-19, in particular about coverage and claims handling. This claims advice is intended to offer guidance to help our retail clients through these difficult times.

Insurance Impacts of COVID-19 on the Healthcare and Senior Living Industry

03/30/20

As the healthcare industry remains on the front lines of battling the COVID-19 pandemic, staying abreast of the changing landscape and how the insurance market is adapting is critical to ensure new exposures are covered and renewals are successfully placed. In this article, our specialists share what they are seeing in the Healthcare and Senior Care markets, tips for risk control and mitigation, and how to get the best results for insureds.

Statute of Limitations Changes Cast a Shadow on Public Entities

03/19/20

​Public entities are facing a climate of change as the market continues to harden and insureds are faced with double-digit rate increases in property and liability. Contributing to this disruption are statute of limitation changes for sexual abuse victims, which have extended or removed the time limit for which a victim can file a claim. This article examines the impact of increased claim activity and discusses considerations that need to be made to better manage costs during this time of uncertainty.​

COVID-19 – Are Your Clients Covered?

03/19/20

The disruption to business and everyday life caused by the coronavirus (COVID-19) pandemic is resulting in an economic impact for insureds. Much of this disruption is likely not covered by insurance. We have consulted with several AmWINS insurance specialists across the Property, Casualty and Professional Lines sectors and offer a COVID-19 update.

Sign Up For Our Monthly Newsletter

Sign Up