Israel – How Your Business Can Avoid the Dramatic Increase in Accessibility Class Actions
Recently, there has been a dramatic increase in the enforcement of accessibility issues in Israel. More and more companies are facing requests for certification of class action suits for failing to make services accessible to people with disabilities. Such proceedings, exempt from court fees, are initiated by lead plaintiffs against big and small organizations, from both the private and public sectors.
Be it physical access to the business or accessibility on the company’s website, businesses must meet a number of requirements most are not even aware of.
The Equal Opportunities for People with Disabilities Law was designed to protect the dignity and liberty of persons with disabilities and to ensure the fundamental principle of equality.
Accordingly, the law set in place a line of requirements intended to ensure market activity is accessible to people with disabilities and that equality is achieved in an optimal manner without creating a sense of difference and “otherness” for people with disabilities.
It is important to be aware of the main requirements of this law and to ensure your business adjusts the ways in which it provides services, including for people with disabilities.
This is the primary duty under the law. This duty applies to any public places, with the first annexure to the law detailing such public places to include supermarkets, restaurants, malls, and leisure and entertainment places, and not just public “governmental” ones. In addition, the duty applies to public services as well, the definition of which appears in the second annexure to the law. Such services include, inter alia, health services, entertainment services, education services, welfare services, public transportation services, and more.
Public services are services provided by private businesses and bodies, and include commerce, culture, accommodation, financial services, and more.
This means the prohibition on discrimination applies to both public bodies and large parts of the private sector.
In order to minimize discrimination as well as meet the requirements of the law and its regulations, business owners must fulfill the duties pertaining to accessibility. In the course of creating accessibility, they must consider all aspects of the business’s activity (i.e., the nature of the service offered to the public, the manner in which it is offered, and the premises where the service is offered). Accessibility exists in both the physical world and the cyber world, and its scope and the duties imposed on a business owner may vary.
Of course, how a service is made accessible depends on the service itself. If the service is provided in a physical manner, the business owner must ensure that one can reach the offices or the location where the service is provided and that reaching such location is enabled as equally as possible. A business owner must also ensure that a person arriving to its place of business is able to receive services in an equal manner, for example by making accommodations for those with vision or hearing impairments.
The Duty to Make Buildings Accessible
A building could be one serving the entire public, a place of business, or a residential building. Making buildings accessible is part of the design and construction process.
Even when you are renting a property, you must consider its accessibility accommodations, for the good of employees and visitors to your business.
Further, some of the duties for making accessibility accommodations lie with the renter of the property and not the owner.
Primary issues to consider when making accessible buildings that serve the public include access to and from the building, disabled parking, accessible corridors and pathways inside the building, doors, entryways and gates that enable all people to enter and exit, overcoming elevation differences, disabled restrooms, signage and directions, flooring, visual and auditory alarm and warning systems, shelters, acoustics and audio systems, furnishings, and more.
Accessibility Accommodations Need Not Only to Be Made, but Also to Be Published
People with disabilities must be made aware of what accommodations are available for the service offered (both the accommodations provided in the course of the service itself and the accommodations to the public place in which the service is provided). Therefore, accessibility accommodations must be published (on a company’s website, on a phone line designated for the public, in distributed brochures, etc.).
This requirement is intended to enable a person with a disability to plan ahead his or her visit to the location, as well as to minimize the sense of “otherness” that may be caused by needing to specifically ask about the existence of relevant accommodations.
In terms of the website, a declaration must be posted detailing the accessibility accommodations made by the website owner. The declaration must also include the details and contact information of the accessibility officer, if one must appoint such an officer under the regulations, and the details of how to contact the officer regarding a lack of accessibility accommodations or with a request to perform an accommodation.
Digital Accessibility Duties
As part of the global transition to online services, there is also a duty to make websites accessible according to Israeli Standard 5568, which relies on the international standard WCAG 2.0, at least up to level AA.
There are various accessibility toolbars and free solutions offered online that promise website accessibility compliance. Such promises must be taken with a grain of salt. These solutions do not always ensure full compliance with every requirement for the website to meet Israeli standards. The internet is dynamic. Therefore, it is pivotal accessibility accommodations and the tools implemented be performed by someone who can provide the business with ongoing support and troubleshooting.
The obligation to comply with Israeli online accessibility regulations applies whenever you target an Israeli audience in Hebrew, regardless of where you may be around the globe.
Accessibility Toolbar: Many website owners tend to add an accessibility toolbar, a shelf product that enables some accessibility accommodations. The incorporation of such toolsbars does not absolve owners of the duty to meet all of the requirements regarding the website, or to perform all the necessary accessibility accommodations. We emphasize that there is no duty to use an accessibility toolbar to achieve the accessibility level required by the regulations. The toolbar is another tool for accessibility, but it is not a substitute for the full process.
Content Posted to Social Media: When a service or information about the service is provided over social media platforms like Facebook or Twitter, the service provider shall make only the accommodations that can be done through said platform. For instance, if the platform permits a choice of colors, it must be ensured there is a contrast between the text and the background.
However, once the user is redirected to your website, the accessibility accommodation duty falls to you.
Apps Accessibility: Smartphone and tablet apps must be accessible in at least two major operation systems and meet all the accessibility requirements applicable to websites. In such cases where the services and the content provided on the website are identical to those on the app, there is no need to make both accessible. Adding a link on the inaccessible website or app to the accessible website or app is sufficient.
Exemptions and Leniencies
Several provisions were intended to ease the burden on those subject to accessibility accommodation obligations and exempt them from making accommodations under certain circumstances. For example, when a building is designated for preservation, it is not always possible to make all the required accommodations to the structure.
A large portion of the exemptions require the opinion of a competent authority, confirming that accommodations are impossible or that they will impose an unreasonable financial burden.
There are also exemptions in terms of website accessibility. For instance, small and new business are granted a grace period before accessibility accommodations are required.
Therefore, we recommend that each business explore the scope of the accessibility duty imposed on it and the ability to make use of exemptions where there is a real difficulty in performing accommodations.
Dealing with Legal Claims
In terms of claims related to deficiencies in making websites accessible, the regulations include a duty to provide advance notice to the website owner in order to give him or her 60 days to correct the issue.
Such duty does not exist in regard to aspects of physical accessibility.
It should be noted that sometimes a 60-day period is insufficient to perform a complete and full accommodation of the website. Thus, the view is that this period was intended to allow the website owner to make corrections in cases where there are malfunctions on the website, rather than to perform accessibility accommodations from A to Z.
We recommend not to wait and to start exploring whether your business and website are lawfully accessible today.