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Business Insurance Coverage Policies for Digital ADA Exposure

Are there business insurance policies for digital ADA lawsuits for websites, mobile apps and web-based software?

Year after year the number of ADA Title iii lawsuits for non-accessible websites, web-based software and mobile apps continue to grow, leaving many businesses exposed to significant costs. This leaves many businesses asking what insurance coverage is there? The short answer is that insurance coverage is evolving but has yet to directly address this exposure. 

And the impact on businesses is substantial. Even small businesses with even a handful of employees are subject to ADA Title iii. During the pandemic this has not slowed - even for impacted businesses such as restaurants. And the total cost of these cases is considerable.

  • Loss of productivity

  • Legal fees (potentially for the plaintiff as well)

  • Settlement 

  • Initial third party audit

  • Initial remediation

  • Subsequent periodic audits and remediation


In addition there is brand risk. More and more employees and consumers today factor in brands’ values. And brands found to be discriminatory to people with disabilities will pay an additional cost.


The low-end price tag of a lawsuit would start in the $20K range and easily go six figures.

 

Potential insurance policy coverage options for ADA lawsuits for websites, apps, and software

One might assume that coverage may fall under Professional Liability as this could be seen as a failure to provide a service. However, the service is actually provided, but not everyone can access it.

Or one could look to a Media or Website Liability policy, which would relate to the content itself - typically used to protect against copyright infringement. But similarly here, it’s not the content itself, but rather the website or app for delivering that content that is the issue and therefore not covered.

Then there is Cyber Liability which is designed to cover instances of breach, loss of data and, depending on coverage, system remediation. Here, however, there is no breach. Basically it’s the opposite. People with disabilities cannot access something that is available to others. 

The one type of policy that could potentially offer coverage is Employment Practice Liability Insurance. If the policy provides Third-party Wrongful Acts coverage that includes Third-party Discrimination, it could offer coverage should a claim arise from an insured’s non-compliant website. At this time, this appears to be the only coverage scenario. Depending on the policy, legal fees might be included in the coverage, but might not cover expenses for auditing and remediating the website or digital property.

 

The best insurance for digital ADA exposure is to eliminate the risk and comply with Web Content Accessibility Guidelines 

Needless to say, the best course of action is to prevent a loss from happening in the first place.  Pre-loss risk management might cost you money on the front end but it will certainly help to keep deductible dollars in your pocket and help to mitigate the exposure. The best course to avoid this risk is to make sure your website, software or mobile app meet current Web Content Accessibility Guidelines. The WCAG serves as the de facto standard for digital ADA compliance and one should strive for WCAG 2.1 A, AA conformity. Successfully reaching that level will effectively remove exposure.

Step One: Conduct an WCAG Audit of the digital property

First, you need to know the extent of the issue. By having a thorough 3rd party audit performed that includes human testing, you can establish your level of liability and the scope of remediation (and therefore cost). A few things to consider:

  • Do not rely on automated audits. Automated tools can only detect 30% of WCAG issues at best.
  • Make sure that all unique pages receive human testing.
  • The quality of the remediation guidance in reporting is a key value.
  • Avoid “overlay solutions” or accessibility widgets that claim to make your site compliant by just adding a line of code. They don’t work and make you a target for legal trolls.

Step Two: Remediation of the digital property to address ADA gaps and ensure the property is accessible.

With the audit results in-hand, you can assess scope and cost of remediation. A good audit will also provide guidance for remediation. Whenever possible, this can and should be done by your web team to retain the valuable lessons to be learned and applied moving forward.

 

The Risk-Cost Factor for ADA Compliance 

The depth of effort and investment will ultimately come down to a balance between Cost and Risk/Commitment to Accessibility. But keep in mind when calculating your point in this balance, there are over 60 million people in the US with a disability. And by ensuring their inclusion, you’re also ensuring the best possible user experience for all. 

Disclaimer: There is very little published on this topic. Most of my findings come from the following articles and conversations with insurance professionals. I am not an insurance professional and any interpretation of your insurance policies should be carefully vetted through your insurance broker and your legal counsel.

 

Many thanks to Tim Barnhorst at MountainGuard and Michael Hughart and Aislyn Allen at Kinney Insurance for research and guidance on this topic.

 

Additional Reading

AmWINS Group: Client Advisory: Is your Insured’s Website Compliant With Disabilities Act?

ProWriters: Blog Post: ADA Lawsuits Reveal New Exposures for Business Owners

Perkins Coie: Website and Applications: A new Platform for ADA Claims

 

Photo by RODNAE Productions from Pexels