A Third Through 2021, Here Are the Developments in Disability Law and Regulation to Watch

Published April 12, 2021

It is perhaps fitting that having recently celebrated the 30th anniversary of the 1990 passage of the Americans with Disabilities Act (the ADA), the issue of disability rights has also assumed a much more prominent role in today’s 24-hour news cycle. The challenges we face today are universally linked to the impact on people with disabilities, as shown daily in Accessibility News BrieflyTM.

The growing prominence of disability issues in our day to day lives is reflected in our political and government worlds as well. We witnessed in our most recent election cycle a greater focus on the rights of people with disabilities than ever before. Then President-Elect Biden made specific mention of people with disabilities in his election victory speech stating that "we must make the promise of the country real for everybody — no matter their race, their ethnicity, their faith, their identity or their disability."

The Biden administration announces increased assistance for people with disabilities

A third of the way through the year, it seems the legal landscape of laws and regulations addressing disability discrimination will be shaped by an apparent renewed leadership focus on issues impacting people with disabilities. Demonstrating a desire to address the impact of the COVID-19 virus on people with disabilities in its National Strategy for the COVID-19 Response and Pandemic Preparedness (PDF), the administration previously announced:

  • The Centers for Disease Control and Prevention will issue "focused guidance" on COVID-19 for people with disabilities.
  • The provision of greater assistance to intermediate care facilities for people with disabilities and increased support for those receiving home- and community-based services.
  • A program for the collection of data designed to demonstrate the many ways that COVID-19 is impacting people with disabilities. This has been a long standing issue with advocates for people with disabilities who point to the need to measure progress in order to achieve lasting improvement.
  • A call for the Department of Education and the CDC to assure that upcoming "detailed technical guidance" on how to safely reopen schools includes information on best practices to service and staff with disabilities.
  • A commitment to establish new models to get vaccines to high-risk individuals, specifically including institutions for those with intellectual and developmental disabilities, and to "work with CDC to review concerns about vaccine guidelines for people with disabilities and other groups."

We're in the midst of finding out how well these intentions will be met. Based upon the initial hints of an increased focus on the rights of people with disabilities, key priorities recommended by disability advocates will likely be reflected in upcoming federal and state legal and regulatory agendas and actions.

Increased enforcement of existing disability laws and regulatory guidance

During the past 30 years our view of the physical constructed world has been permanently altered as additions such as entry and exit ramps, cut curbs, elevators, and other accommodations generated by the ADA have become a ubiquitous part of our landscape and no longer a reflection of laudable generosity. This is not yet the case however with respect to the non-physical environment where the ADA and other disability laws have not achieved similar results in making the digital world more accessible. As we all adjust to an increasingly remote world, the pandemic has highlighted the barriers to the benefits of technology that people with disabilities encounter every day and the consequences of these failures.

The Justice Department during the Obama administration made strides toward developing regulatory guidance on how best to apply the ADA to the digital world. Overall reduction of regulation during the Trump administration stalled this initiative, which may be likely to pick back up in the remainder of 2021.

Important update of the Web Content Accessibility Guidelines (WCAG)

According to general consensus and under laws like Section 508, firms can protect themselves by complying with Web Content Accessibility Guidelines (WCAG) 2.0 Level AA and subsequent updates. WCAG 2.2, the first update since WCAG 2.1 was published in 2018, is expected this summer.

Among other things, WCAG 2.2 will provide improved support for users with low vision and for users with disabilities on mobile devices. It is important to note that each version of WCAG 2 adds new success criteria to the prior version in a manner that doesn’t alter conformance to a preceding version. WCAG 2.2 maintains the same basic format as its predecessors but its new features are designed to help improve the user experience.

Summary

The impact that barriers to accessibility have upon the lives of people with disabilities has been made more evident by COVID-19’s pressure to improve remote opportunities. This growing awareness combined with the Biden administration’s overall commitment to increase regulatory focus on digital disability discrimination may make 2021 a year of notable legal developments in this area.

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