You Can Be Sued If Your MSP Website Fails To Meet ADA Compliance
ULISTIC is now speaking with MSP firms to ensure they meet ADA Compliance standards.
While many organizations may be reviewing their websites to ensure that they are accessible for screen readers that assist those with impaired vision, are your website clients also taking cognitive disabilities, mobility impaired and individuals with hearing disabilities into consideration? In 2018, the courts in the U.S. were given greater leeway in enforcing the Americans with Disabilities Act (ADA) requirements that essentially classified websites so they are treated as a brick and mortar establishment. While this is a positive step forward for inclusiveness, website owners are scrambling to ensure that the code behind the scenes provides the best possible experience for website visitors of all abilities. Stuart Crawford, CEO and Founder of Ulistic, recently caught up with two experts in the field of ADA and technology to understand how this impacts IT MSPs around the country. Thomas Fafinkski, co-Founder of Virtus Law, and Anthony Buonaspina, CEO of LI Tech Advisors, share their understanding of the changes and the repercussions for organizations whose websites are non-compliant with these important requirements.
Accessibility is Only One of the Benefits of ADA Compliance
What is staggering to many individuals is the size of the market: 25 million people in the U.S. have some sort of disability. This essentially represents 20% of the U.S. population that control around $4 trillion of disposable, discretionary spending power in the U.S. alone. Ensuring that a client's website is fully compliant with the WCAG (Web Content Accessibility Guidelines) 2.0 and 2.1 as defined by a panel of industry practitioners is best practice, sure -- but these same guidelines can also help boost your website search rankings. These recommendations are organized under four key guidelines, that websites and other digital platforms such as mobile apps should be:
Meeting the criteria for each of these guidelines is relatively straightforward, and allows websites and other mobile platforms to be graded as A, AA or AAA. Thomas Fafinski recommends that organizations reach for 2.0 compliance at the AA level, as that is most likely to be accepted by local jurisdictions as "being compliant". There are free online tools that will help you identify the compliance levels of your website, or you can work directly with a partner to certify website compliance.
Are Smaller Businesses Exempt from ADA Compliance Requirements?
Any organization that is open to the general public must comply with these requirements. Even small organizations of less than 25 people must also do business in ways that are accessible to all. The courts state that if you're offering digital services that are comingled with a physical location in any way then you must have accommodations for those who are differently abled. What's worse is that there are attorneys who are actively pursuing smaller businesses due to the perception that these regional organizations may not have the funds available to hire an attorney and will settle out of court for a moderate fee -- plus attorney's costs, of course.
Different jurisdictions around the country are upholding these laws in a variety of ways. The Department of Justice has made it clear that ADA applies to websites, and sent a letter to Congress that they needed some additional recommendations on how to implement the ADA requirements for digital platforms. Without this additional level of clarity, there are lawsuits popping up all over the place. In 2019 alone, thousands of lawsuits have already been brought in the courts around the ADA laws -- with the number of 2019 lawsuits being greater than 2017 and 2018 combined. In the case of Dunkin' donuts, there was a case brought against them because you were required to go to the website to purchase gift cards -- yet the website wasn't ADA compliant. Since the digital part of the business was intrinsically tied to the physical business (e.g. you used the gift cards at the physical stores), the courts held Dunkin' donuts accountable. These laws are also in place for organizations that are purely eCommerce or digital, too.
Is ADA Compliance the Next Big Offering for MSPs?
Organizations are struggling to understand, audit and implement ADA best practices, and this is a premier market offering for MSPs. When you present your MSP as a knowledge leader in the ADA compliance realm, you are able to educate clients about the importance of making these changes in their websites and other digital properties. At LI Tech Advisors, they provide free grading of sites for potential clients along with high-level recommendations and a plan for remediation. While there is a limited cost for building this work into a new website, the costs for rebuilding a site to be fully compliant can be astronomical. In the case of Target, the retailing giant faced a lawsuit of $6 million for lack of compliance, but the actual rebuild of the site cost around $21 million, according to Fafinski. The Target case occurred as far back as 2008, but organizations are still struggling with compliance measures more than a decade later.
What Do You Do When Your Client Receives a Non-Compliance Letter?
First step: call an attorney to limit the exposure and begin working towards compliance. It depends on where you are in your accessibility journey, then you have some defenses if you've started. If you haven't taken any steps to make your website compliant, then you're not in a good place. It's not unusual for your MSP to be blamed for not advising your client that their website or mobile platform is supposed to be compliant. Next, you strive to immediately become compliant. Not only is this a great thing to do to broaden your market, but you are also reducing the liability exposure for your business.
As the MSP involved, you're going to be held responsible if you're not telling clients that their website is not accessible, there is some level of implied liability that the MSP -- as the IT service provider -- should have informed the client and recommended that they become accessible. Offering the service proactively not only protects your business, but clients appreciate that you have their best interests top of mind.
Here are a few quick tips towards compliance:
- One of the most important things for businesses to include is a usability statement in the footer of your website or within your app that says that you are in the process of making your website compliant. This shows that you know there are problems and that you're making a statement. This generally includes a phone number to reach out to someone for assistance. Try the accessibility statement generator available on the W3C website.
- If someone with disabilities calls your receptionist or customer service team, that individual must take the time to try to help the individual understand their options when it comes to accessibility. Whoever answers the phone needs to be trained to understand the accessibility options that are offered by your organization, or you risk being the target of an ADA lawsuit.
- Tagging images, radio buttons are checked correctly, field labels -- there are multiple criteria that you must meet for your website to be deemed accessible. You need a website designer that is familiar with the WCAG standards and how to implement them. It's crucial for MSP teams that you have trained individuals who understand about meeting and maintaining compliance standards.
Accessibility testing is a checklist that you've completed the requirements such as image tagging and more. Usability testing is completed by actual users who ensure that the digital property is just as usable for individuals with disabilities as for others. A blind individual should be able to go through a site as quickly as a sighted person.
How to Protect Your MSP from Risk of Client ADA Claims
If a client is a party to a non-compliance lawsuit, it's likely that they will look to their digital marketing firms and their IT MSP and ask the difficult question: Why didn't you warn me that this was a problem? The best way to protect your MSP from the risk of this type of claim is to ensure that you make ADA recommendations a part of your master services agreement in a section that clients must review and either accept or decline. If clients actively decline your input and offerings in this area, then you are more likely to be covered in the event of a lawsuit. This is similar to the way contracts currently are written to cover cybersecurity recommendations, for instance. If you are not proactively taking the steps to notify clients that there is a problem, it creates an ongoing risk for your business that may even stand in the way of any M&A activities in the future.
Your MSP Can Get Started Today
It's recommended that you contract with a legal MSP such as Vertus Law to help protect your business and your clients against lawsuits. Understanding the various legal implications can also help your business grow by offering compliance services and testing as a differentiator. The preferred relationship with Vertus is a subscription arrangement because you receive an easy access to an MSP attorney who truly understands the unique needs of your business. As opposed to a traditional attorney, MSP attorneys already understand the singular needs of your business and can immediately provide value.
This type of accessibility offering is a differentiator and competitive advantage for MSPs around the world. Many clients have never heard about accessibility requirements and look to their MSPs who recommend this as experts in their field. It's not only about testing the site but they also provide periodic usability testing -- and each of these items can be charged to the client. As changes are made to client websites, these sites will need to be tested to ensure that they are still compliant. Looking toward the future, LI Tech Advisors is building software that will proactively notify technicians that there are ADA compliance issues that need to be resolved and are providing other MSPs with an opportunity to license a white-label version of the software in the future.
Stressing ADA accessibility isn't just the right thing to do -- it's also good business. Ulistic is beginning to talk to MSPs about ADA compliance in marketing materials because no one else is really addressing this issue yet. Ready to get started? Request a website grade online today at Ulistic.com and you'll have an opportunity to speak directly with Stuart Crawford to see how your website stacks up and how you can incorporate new offerings to boost your MSP ahead of the competition.