Undue Financial or Administrative Burden

Introduction

These are considerations and resources for the undue financial or administrative burden (“undue burden”) defense as part of the updated web accessibility regulations (ADA Title II and HHS Section 504). Orbis Cascade Alliance member institutions have varying levels of risk and compliance assessment, and the Alliance does not take a position regarding legal advice or recommendations. We understand library decisions need to be made locally in consultation with campus administration, legal counsel, and community partners.

Overview

An undue burden is the point at which reaching accessibility compliance would require excessive financial expense or significant administrative or technical difficulties. If compliance with the web accessibility regulations would result in undue burden, action must be taken to improve accessibility up to that point. Also, undue burden is an ongoing determination that must be reviewed in response to resource and technology improvements.

Considerations

These are potential considerations for documenting the scale of administrative and financial difficulties.

  • Quantify the Scope. Determine the quantity of documents or materials that will need remediation for compliance with WCAG 2.1 Level AA. For ongoing services, determine estimated yearly counts.
  • Estimate the Time. Determine the amount of staff time required to perform remediation processes; include all workflow stages.
  • Estimate the Cost. Determine the cost for both (1) increasing internal staff capacity and resources and (2) outsourcing the accessibility remediation to reputable vendors.
  • Identify Operational Impacts. Describe how efforts to meet full compliance will impact departmental operations, such as reallocating staffing and resources, along with other challenges.
  • Identify Alternative Accommodations. Describe the alternative methods and solutions that will be used to mitigate barriers and respond to accessibility needs; explain why they were chosen.
  • Indicate Leadership Role. The decision for determining undue burden must come from the head of the public entity (ADA Title II) or recipient of HHS federal funds (HHS Section 504) or their designee.
  • Discuss with Legal Counsel. While not required, many analysts recommend reviewing decisions and documentation with the organization’s legal counsel.
  • Set a Review Period. Setting a review schedule improves awareness when technology changes reduce operational difficulties or excessive costs; some states recommend no more than two years.

Potential Scenarios

Potential scenarios for considering the undue burden defense may (or may not, depending on local determinations) include:

  • electronic course reserves, 
  • interlibrary loan and document delivery, 
  • digitized archival materials, 
  • required third-party content that doesn’t meet WCAG 2.1 Level AA, and 
  • required third-party web applications that don’t meet WCAG 2.1 Level AA.

Selected Resources

Federal Regulations

These are the sections in the regulations that discuss undue burden. The departments’ analysis and comment sections from the rules published in the Federal Register provide more detailed information than the regulations published in the Code of Federal Regulations.

  • Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities (ADA Title II)
  • Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance (HHS Section 504)

General Overviews

These resources provide general information to introduce the topic of undue burden.

Detailed Summaries and Analyses

These resources explore the concept of undue burden and examine possible methods or checklists for applying the defense. Please note: these resources are not providing legal advice.

These are state and federal laws and regulations that have similar guidance to undue burden and may provide additional support.

Digital Accessibility Law for Colorado State and Local Government

Colorado HB21-1110, as amended by HB24-1454, has some similarities to the federal web accessibility regulations (e.g., compliance with WCAG 2.1 Level AA). It also has some differences (e.g., internal web application requirements, accessibility plans). These resources may help strengthen understanding of similar elements, such as undue burden.

Section 508’s “Best Meets” Exception

For procurement of web applications (not content), another similar regulation is Section 508 of the Rehabilitation Act. The “best meets” exception for commercial off-the-shelf products is similar to the undue burden defense because of how the process effectively reaches a similar conclusion.