Accessibility Quick Tip: Undue Burden and Your Library’s Accessibility

Undue burden in the context of technology accessibility refers to the significant difficulty or expense that an organization might face in making its digital products or services accessible to individuals with disabilities. This concept is crucial in understanding the legal and ethical obligations under laws such as the Americans with Disabilities Act (ADA), Section 508 of the Rehabilitation Act, and Colorado’s own HB21-1110.

Key Points on Undue Burden and Technology Accessibility:

Definition:

An undue burden occurs when making a technological system or content fully accessible would require excessive costs, extensive resources, or create significant difficulties that are unreasonable for the organization to bear.

Assessment Criteria:

• Cost of Implementation: The financial expense involved in making technology accessible. Organizations need to consider whether the cost is disproportionate to their overall budget and resources.
• Resources Available: The availability of technical, human, and financial resources to implement accessibility changes. Larger organizations with more resources may find it harder to claim undue burden compared to smaller entities.

Impact on Operations:

The extent to which making changes would disrupt regular business operations or fundamentally alter the nature of the services or products offered.

Legal Implications:

If an organization claims an undue burden, it must provide substantial evidence to support this claim. The law typically requires organizations to explore all possible alternatives before determining that an undue burden exists.

Reasonable Alternatives:

Even if a full solution poses an undue burden, organizations are still expected to provide alternative accessible methods or accommodations. For example, if a website cannot be fully accessible, the organization might offer phone support or alternative formats to assist users with disabilities.

Ongoing Responsibility:

The concept of undue burden is not static; organizations are expected to continually assess and improve their accessibility measures as resources and technology evolve.

Documentation:

To properly document undue burden, an organization must create a comprehensive and transparent record that justifies why making a specific technology or service fully accessible would cause significant difficulty or expense. This documentation is critical for legal compliance and to demonstrate that the organization has made a sincere effort to assess and address accessibility concerns.

Steps to Document Undue Burden:

1. Assessment of Accessibility Requirements:

• Identify Accessibility Standards: Document the specific accessibility standards (e.g., WCAG 2.1, Section 508) that apply to the technology or service in question.
• Current State Evaluation: Conduct an accessibility audit to determine the current level of compliance. Detail the gaps between the current state and full compliance.

2. Detailed Cost Analysis:

• Estimate Costs: Obtain detailed estimates for the work needed to make the technology accessible. This should include costs for design, development, testing, training, and ongoing maintenance.
• Breakdown of Resources: Document the resources required, such as personnel, time, and financial investment. Include bids or quotes from external vendors if applicable.

3. Impact on Operations:

• Operational Disruption: Outline how implementing full accessibility might impact daily operations. Consider potential downtime, resource reallocation, and other operational challenges.
• Business Context: Provide context about the organization’s overall budget, size, and available resources. Smaller organizations may need to emphasize their limited capacity compared to larger ones.

4. Alternative Solutions Explored:

• List Alternatives: Document any alternative solutions or accommodations considered, such as offering phone support, alternative formats, or other accessible options.
• Implementation of Alternatives: Explain why these alternatives were chosen and how they mitigate the accessibility barriers, even if full compliance is not achieved.

5. Efforts to Minimize Burden:

• Phased Approach: Document any plans for phased implementation of accessibility features over time as resources allow.
• Prioritization of Critical Areas: Identify and document which accessibility features were prioritized based on user needs, focusing on the most critical areas first.

6. Consultation and Expert Opinions:

• Accessibility Consultation: Record any consultations with accessibility experts, legal advisors, or advocacy groups. Include any reports or recommendations they provided.
• Legal Review: Document any legal advice received regarding the undue burden assessment and compliance obligations.

7. Decision-Making Process:

• Internal Discussions: Document internal discussions and decision-making processes, including who was involved, what was considered, and how the final decision was reached.
• Approval: Include the final decision, who approved it, and the date of the decision.

8. Ongoing Review and Updates:

• Periodic Review: Outline a plan for periodically reviewing the undue burden status as circumstances change (e.g., increased budget, new technologies).
• Documentation Updates: Keep the documentation updated with any changes in the organization’s capacity, resources, or the availability of new, more affordable solutions.

Template for Documenting Undue Burden:

• Project/Technology Name: [Insert Name]
• Accessibility Standard: [Insert Standard, e.g., WCAG 2.1]
• Current Accessibility Status: [Summary of Audit Results]
• Cost Estimates: [Detailed Cost Breakdown]
• Resource Requirements: [List of Required Resources]
• Impact on Operations: [Description of Operational Impact]
• Explored Alternatives: [List of Alternatives Considered]
• Phased Implementation Plan: [If Applicable]
• Consultation Notes: [Summary of Expert Opinions]
• Decision Summary: [Final Decision, Approving Parties, Date]
• Review Schedule: [Plan for Future Reviews]

Undue burden recognizes that while technology accessibility is a legal requirement, there are limits based on the feasibility and impact of implementation. However, this does not absolve organizations from making efforts to improve accessibility wherever possible.

This structured approach ensures that an organization’s claim of undue burden is well-documented, transparent, and defensible if challenged. It also demonstrates the organization’s commitment to accessibility and to finding reasonable accommodations where full compliance is not feasible.

Resources:

OIT Speaker Series: June 11, 11:00 a.m. – Fundamental Alteration, Undue Burden and Direct Threat

• Slides: Fundamental Alteration, Undue Burden and Direct Threat
• Recording: Fundamental Alteration, Undue Burden and Direct Threat
• Transcript: Fundamental Alteration, Undue Burden and Direct Threat

WC3 Web Accessibility Initiative: WCAG 2 Overview

8 CCR 1501-11 Technology Accessibility Rules – OIT (Colorado Governor’s Office of Information Technology)

Plain Language Guide to the State Technology Accessibility Rules – OIT (Colorado Governor’s Office of Information Technology)

OIT Technology Accessibility Rulemaking Factsheet – OIT (Colorado Governor’s Office of Information Technology)

How To: Document Undue Burden, Fundamental Alteration or Direct Threat – OIT (Colorado Governor’s Office of Information Technology)