Five major U.S. pharmacy and grocery chains reached a settlement with the Justice Department. The settlement indicates the companies will ensure people with disabilities can access information about COVID-19 vaccinations and book their vaccination appointments online. The agreements indicate the companies will conform to the Web Content Accessibility Guidelines (WCAG), Version 2.1, Level AA.
The cases came about when their COVID-19 vaccination registration portals were not accessible to people who use screen reader software or don’t use a mouse. People who use the “Tab” key instead of a mouse to navigate websites cannot get past the request for insurance information. They couldn’t complete all the information on the website using their keyboard. They got stuck.
Title III of the Americans with Disabilities Act (ADA) requires public accommodations like pharmacies to provide individuals with disabilities with full and equitable access to goods and services.
In this episode of A11y Insights, Ken Nakata from Converge Accessibility and Equal Entry CEO and founder Thomas Logan talk about the settlements and check the accessibility of their websites to gauge if they’re accessible today.
Why did the DOJ Put A Lot of Attention on COVID-19 Websites?
Thomas Logan: Looking over the different settlement agreements that the Justice Department reached in the United States in recent years, we saw that there was a lot of attention on COVID-19 and vaccinations and the technology that enabled people to get vaccinations. So Ken, why did the DOJ put so much attention on COVID-19 websites, and how did it become that multiple companies received notices from the DOJ?
Ken Nakata: That’s a great question, Thomas, and I don’t have a clear answer on what happened in this particular instance. Normally, when the Justice Department does an investigation, it does so in response to a complaint that’s filed by a person in the public, saying that an organization, whether it’s a public entity, such as the state or local government or a private company discriminated against them. Then the Justice Department conducts an investigation, and tries to reach a settlement agreement.
I’m not sure that they did that in this case. The Justice Department can also, under its authority, just independently go and do a compliance review or start an investigation if they feel that something is of great public interest.
So, for instance, they do that in the context of their Title II investigations under what they call the Project Civic Access or PCA where they go to a particular town and they just investigate everything in that town. And those cases are very rarely initiated by a public complaint. I suspect that in this case, the Justice Department may have heard wind or rumors of a problem with registration sites by pharmacies for COVID vaccines.
And since this was the middle of the pandemic, they thought, “Oh my God, that’s a huge issue. We’ve got to take care of that right away.” So, they could very well have just blanketed the major pharmacy companies and supermarkets who are providing the COVID vaccines and just asked them to make sure that their sites are accessible, and investigated their sites to see whether they were accessible.
Thomas Logan: That makes complete sense to me. I think even during the time that all of this was happening, like front and center in our lives, it’s all of us had to think about going to that site, figuring out how we get the documentation to show that we have the vaccination.
It makes sense in the way that you explained that this could have not even needed to come from the general public as a warning, although it might have. But it also could have just come from the fact that like every American is expected to use this system and this is the system where you show that you received the vaccination, et cetera, et cetera.
So, that’s kind of cool, though, to know that it doesn’t have to come from a specific person’s grievance. It could also come from just an awareness on the agency’s part that this is something that everyone’s having to deal with right now. Is that what you’re saying?
How Are the Companies’ Websites Doing Since Receiving the Complaint?
Ken Nakata: Yeah. Now that they’ve done that though, I’m wondering about the lessons learned for these organizations and the accessibility that these portals have just in general for people with disabilities, not necessarily COVID vaccines, but just in general.
Did they do anything about the complaint? Are their sites more accessible?
Thomas Logan: And I think that’s a great segue to why don’t we just run Deque’s aXe for the websites that received complaints and let’s see what type of results we get. Obviously, if you think about accessibility and think about WCAG, aXe is a great tool to see if you have anything you’ve missed. Normally there are no false positives.
Let’s pull up the websites of the pharmacy chains that had problems when they received the DOJ notice. From looking at the Department of Justice website, it looks like there are at least five companies that entered into settlement agreements with the Justice Department over their COVID vaccination portals.
Should we just start going through them and let’s see what they’re doing?
Ken Nakata: I think that’s a great idea, Thomas. So how does CVS look?
Thomas Logan: Let’s look at CVS. Alright, so I’m on the CVS immunization COVID-19 vaccination website, schedule your COVID-19 vaccine today. We’re going to run the axe check first. So I’m going into my UI, I’m going to check that I can run the axe dev tools.
I like using the axe dev tools on websites because although automated checks are only a certain percentage of accessibility checks you should check for, what’s great about them– you don’t have to spend a lot of time. So if we see any issues logged under aXe, it’s kind of showing us that the website’s not completely been focused on accessibility.
So on CVS, we see pretty good results. There’s only one automatic issue and it’s critical. And it’s about zooming and scaling must not be disabled for the website. But all in all, I would say this is a pretty good result for CVS. It shows me that the website looks pretty interactive.
There’s the checkout cart and sign-in button. There’s a hamburger menu for a responsive website. There are a lot of things that normally in evaluating a website would have accessibility issues. So, I feel pretty good about these results. We want to make sure that zooming and scaling can be enabled for people with disabilities, but the fact that there’s only one issue is pretty good.
Ken Nakata: Great, what about Rite-Aid?
Thomas Logan: Well, here is the Rite-Aid website, and you can see a similar type of prompt. We need to come in and get our COVID-19 vaccine. So I’m going to inspect the page, and I’m going to run the aXe dev tools. And here we don’t get a set of requirements, but we see that there are four total issues.
So again, to remind everyone, just because there are four issues doesn’t mean there are no other accessibility issues, but this is just a quick check with the tool. It’s sort of a one-minute check. And this is what I do think people do on your website.
They just come in and say, did they even think about accessibility? For this particular page, I would think they thought less about accessibility than CVS because CVS had one issue, here we have four issues. The four issues relate to the contrast ratio. This is color contrast. And there are specific instances on this webpage where we’re having a color contrast issue.
It’s just literally this light blue color with a gray background. I bet it’s pretty close, but unfortunately, it’s not meeting the color contrast. Sorry, Rite-Aid. A little more work to do.
Ken Nakata: That’s interesting. Okay. What about Kroger?
Thomas Logan: Kroger. That reminds me of North Carolina where I’m from. I used to shop at a Kroger. If you’ve never been to a Kroger, it’s just like Rite-Aid and CVS. Maybe a little bit more like a grocery store than a convenience store.
I’m gonna scan Kroger. Oh my gosh, Kroger, you have seven issues. In this particular one, where we now have ARIA-specific (Accessible Rich Internet Application) guidelines, and I think this is something that developers ignore.
Unfortunately, the way that WCAG is structured, it’s more about, “Do you comply with WCAG or not? Does it affect a person who has a disability or not?” In these particular issues, I would say … I bet if we tested this manually, we would find out these are big problems for people with disabilities.
But because we’re only testing this at like an automatic high-level view, all we can do is just say, “Well, there are seven issues. Three of the issues are around not using ARIA, which is the Accessible Rich Internet Application specification, accessibly. You’re just like not following the spec for these three.”
The last four are elements that are marked “ARIA hidden should not be hidden if they have interactive elements.” This is probably one where, when I see this issue flagged in aXe, it’s more of a concern that people are trying to do a quick fix and they’re just being like, hide everything because it’s not working.
Obviously, with accessibility, we want everything to be working. You should be careful about using ARIA hidden unless it’s something that should be hidden. And I doubt on this webpage that’s something that should be hiding.
What do you think, Ken?
Ken Nakata: That’s funny. It’s a Band-Aid fix, you think?
Thomas Logan: It’s like more of an overlay-type solution where if we fix all the issues, we don’t have any problems, right? I think that’s what I’m seeing here where they might have created a solution just to show compliance. But if you tested it manually with the assistive technology, you would find out. Well, it’s important to mark if that thing is focusable or hidden. You shouldn’t just mark something hidden on the website.
Ken Nakata: Well, you know my feeling about that, Thomas. I don’t like it when people just shoot for just WCAG compliance. It has to be functional.
Thomas Logan: I think that’s a good point just to hammer in. Okay, they shot for WCAG compliance. Even just shooting for that, they still have seven issues. That’s another critique, just that you entered a settlement agreement, and you claimed you’re going to make fixes.
It’s fairly straightforward, right? I think knowing if you have automated violations, it’s straightforward. Run aXe. Something that I would say is a general best practice now.
If you have seven issues in 2024 after you got sued about this in 2021 or 2019, whenever they got sued about it, okay, something’s not working in your process if you still have issues two to four years on.
Ken Nakata: That is not very reassuring given the fact that Kroger is an enormous company. They have 2,700 grocery stores around the country. They own enormous brands and a ton of companies. They have a huge presence up here in the Pacific Northwest. Even if they’re not Kroger specifically, I know there are a lot of companies that we shop at that are owned by Kroger.
Anyways, so if they don’t get it right, that means that probably all those subsidiaries aren’t getting it right either.
What about Meijer?
Thomas Logan: So Ken, what do you know about Meijer? Is that a company you do business with?
Ken Nakata: No, not at all. They don’t have any locations around here. I think they’re primarily in the upper midwest country states, I want to say Wisconsin and Michigan, but not around here.
Thomas Logan: Alright, so I’m going to just click in then, this is sort of a more serious website where I’m like logging in and giving them information from the start. I’m just showing Meijer COVID Vaccine. The top link for that is this clinic website. I’m going to just start from here. This is the clinic.meijer.com website.
This appears to be the main portal to getting into the COVID solutions that they have. In this one, we see something very assuring. Zero issues. I want to celebrate Meijer here that the primary portal to coming in for looking for a vaccine, there’s zero automated issues.
Now, again, we know that as I’ve expressed, we have to do a full test to figure out if there are other issues, but the fact that I see zero total issues makes me feel more confident with Meijer that they are doing work for accessibility.
I would say just from an outsider’s perspective, looking at five different websites, Meijer got the message from DOJ and they’re making fixes. What do you think?
Ken Nakata: Well, I think it’s great that a traditional American company like Meijer is doing such a great job. I mean, they’re almost a hundred years old and founded in this country. I don’t know exactly where they were founded off the top of my head, but it’s good to see.
What about Hy-Vee?
Thomas Logan: Alright, let’s look at our last website, Hy-Vee. Here we go. This is hy-vee.com/my-pharmacy/covid-vaccine. This is their page for providing access to the COVID-19 vaccine.
Ooh, Hy-Vee, you’ve got six issues. Again, this is another company in the list that we’ve already been going through, where they received notice from the Department of Justice. We get that not everyone has the same technology process, but I would have a more negative perception here that you were told, “This is really important. Accessibility matters.” And we still find six issues on the site.
The issues that we find, again, you have to be clear about this. As an accessibility professional, does it matter? The issues you find, maybe the issues that we’re finding right here aren’t as important as what we saw on CVS or Rite-Aid. But, in this specific site, we see that D elements must only directly contain properly ordered DT and DD groups and DT and DD elements must be contained by DL.
So specifically this set of failures looks more specific to the markup of the website. And I would say, yes, these are important. We want to make sure the website functions correctly. But in my expertise, it’s not as big of an issue as other issues that we’ve seen.
What do you think, Ken?
Ken Nakata: Well, I’m going to leave the accessibility up to you for the website.
It sounds like, from what you’re saying, it may or may not be a problem. It would require a bit more digging around.
Thomas Logan: That’s how I feel seeing it at a high level. I think people should think about that. I think that’s something we’re getting more real about with accessibility in 2024. People are going to run these tools on your website and they’re going to form an impression of you from that.
Even if those aren’t important, I would still probably argue you should think about that because people now get accessibility, something they have to do, and they’re going to use the tool that checks you.
If you have failures that are easy to find, it does form a negative impression. Maybe that’s right or wrong, but I would have a little bit of a concern for that. Just from showing very quickly for you all in today’s presentation, five different sites. You’re going to form an impression that Meijer was the best because it had zero issues.
And that’s kind of logical, right? Like you compare products and you check the issues. And so, I do think each company should be thinking about, of course, making sure it works for everyone, but also checking the automated tools. You don’t want to have issues showing up especially like four or five years after a DOJ complaint. If you still have issues showing up, it’s not a great look.
Ken Nakata: No, and also, if you’ve had issues that came up in a DOJ investigation, and they come back and have another investigation against you for some reason, and they continue to find problems, that’s why the statute allows for civil penalties from the Justice Department and those can be pretty sizable.
Organizations should be thinking about this. I’m glad to see that Meijer was doing well, at least with regard to automated testing tools. If not for anything else, it gives me some suggestions that maybe they’re using Deque’s tools.
Thomas Logan: Yes, it may be.
Ken Nakata: But that’s just the sarcastic, cynical side of me. I suspect that they are taking accessibility very seriously, and that’s good to see.
Thomas Logan: Yeah, and I’d like to close with my comment that I’m not specifically recommending Deque aXe as a way to do the automated testing for your site. But as Ken also just mentioned, obviously it’s a good indicator that you’re spending time working on things.
It’s like, you almost can’t fake making the fixes, even if you make a fix for a different product. It’s going to show in the work of your website. When you don’t make fixes, it doesn’t matter if you use aXe, WAVE, WebAIM, or any other tool. We would find mostly the same issues.
My opinion too is that it does show that they’re putting focus on accessibility if they’re reducing the number of issues. If we think that, and we’re accessibility experts, you should think that when you’re working on your website.
You shouldn’t assume that you should be able to get away with seven issues or 10 issues on your site. That’s probably not a good look. It’s not a good indicator that you’re working on accessibility if you have easily discovered issues that relate to accessibility on your website.
Ken Nakata: Exactly.
Thomas Logan: Thank you, everyone, for reading. We’re curious about your perspective on this issue. If you have/had good experiences with submitting information to the DOJ and or maybe some of the companies we mentioned, have you ever submitted a question to those companies and have you gotten a good response back?
We’d love to hear from you. Let’s continue the conversation. Please add comments and we will be happy to respond. Thank you so much for your time and we will see you in our next episode.
- CVS Pharmacy, Inc. Settlement Agreement [PDF] Web access settlement agreement to ensure that people with disabilities (including those who use screen readers and those who have difficulty using a mouse) can privately and independently get information about COVID-19 vaccinations and book their vaccination appointments online.
- United States Reaches Agreement with CVS Pharmacy, Inc., to Ensure Online Access to COVID-19 Vaccine Registration for People with Disabilities
- CVS to make vaccine booking more accessible in settlement with DOJ
- CVS settles with Justice Department to make vaccine scheduling more accessible
- Rite Aid Corporation Settlement Agreement: Web access settlement agreement to ensure that people with disabilities (including those who use screen readers and those who have difficulty using a mouse) can privately and independently get information about COVID-19 vaccinations and book their vaccination appointments online.
- Justice Department Secures Agreement with Rite Aid Corporation to Make Its Online COVID-19 Vaccine Registration Portal Accessible to Individuals with Disabilities
- DOJ settlement makes Rite Aid vaccine registration more accessible
- DOJ Reinforces its Stance: ADA Applies to the Digital World
- Kroger Settlement
- Meijer Settlement
- Hy-Vee Settlement
Do you need help with accessibility compliance?
Our years of experience working with lawyers and being expert witnesses in lawsuits have given us a unique perspective when it comes to explaining and justifying our clients’ accessibility compliance.
If you are experiencing any legal issues related to the accessibility of your technology, please contact us to discuss how we can help.