ADA Title II exceptions: what the web rule excludes

In brief

The Title II web rule lists five exceptions in 28 CFR 35.201. Content that falls within an exception does not have to meet WCAG 2.1 Level AA under the rule. The exceptions are narrow, and each has conditions.

The five exceptions

• Archived web content: content that meets the definition below.
• Preexisting conventional electronic documents: PDF, word processor, presentation and spreadsheet files that existed before the compliance date, unless they are currently used to apply for, access or participate in services, programs or activities.
• Third-party content: content posted by a third party, unless the third party posts it under a contractual, licensing or other arrangement with the entity.
• Individualized, secured documents: conventional electronic documents about a specific individual, their property or their account that are password-protected or otherwise secured.
• Preexisting social media posts: posts made before the compliance date.

What "archived web content" means

All four conditions in 28 CFR 35.104 must hold. The content:

1. was created before the date the entity must comply with the rule, or reproduces paper documents created before that date;
2. is retained exclusively for reference, research or recordkeeping;
3. is not altered or updated after the date of archiving; and
4. is organized and stored in a dedicated area or areas clearly identified as archived.

Placing content in an archive does not by itself qualify it.

Third-party content

DOJ gives public comments on an open message board as an example of content from a truly unaffiliated third party. An entity cannot use a contractor to post content and then claim this exception.

Exceptions do not remove other duties

Even when an exception applies, the entity must still meet its other ADA obligations, such as effective communication and reasonable modifications. That may mean providing accessible formats on request.

What to do

• Go through your documents and decide which fall under an exception, and write down why.
• Check every archive against all four conditions before relying on it.
• Provide a way for people to ask for an accessible version of anything excluded.
• Make sure forms and documents people use to apply for or access services are accessible, even if they are old.

Common mistakes

• Calling a page "archived" because it is old. It has to be retained only for reference and stored in a clearly identified archive.
• Assuming old PDFs are excluded when they are still used to access a service.
• Treating vendor-posted content as third-party content.

Sources

• 28 CFR Part 35, Subpart H: Accessibility of Web Information and Services (eCFR), opens in a new tab
• 28 CFR 35.104: Definitions (eCFR), opens in a new tab
• First Steps Toward Complying with the Title II Web Rule (ADA.gov), opens in a new tab

This page is for informational purposes only and is not legal advice. For binding requirements, refer to the official ADA statute and regulations, and ask a lawyer how they apply to you.