Coronavirus and the Americans with Disabilities Act (ADA) Accommodations
As the Maryland State Department of Education struggles with leadership and guidance around the pandemic, MSEA continues to provide educators with updates and new information about teaching, learning, and working. “Our focus is always on safety and clarity for educators, students, and families,” said MSEA President Cheryl Bost. “That includes making sure educators are aware of policies designed to keep them healthy.” Here’s an excerpt from MSEA’s new FAQ on how securing accommodations through the ADA works.
Find an expanded version of Coronavirus and the Americans with Disabilities Act (ADA) Accommodations and many more coronavirus and educators FAQs here.
A school district is telling employees that the only available accommodation is a leave of absence. Is that lawful? Probably not. It is possible that a leave of absence could be the only reasonable accommodation in some circumstances for some employees, but it is highly doubtful that it is the only possible accommodation for all employees who may have a disability.
A range of possible accommodations, some posing very minimal financial costs or operational disruption, might be available. Depending on the employee, these could include: modified work sites, routines, or assignments; additional PPE; and/or remote work.
How can we push back against a district that is saying a leave of absence is the only available accommodation? It is likely that an employer insisting that a leave of absence is the only available reasonable accommodation is violating the law. An employer must engage in an “interactive process”—a conversation or a meeting—with an employee seeking accommodations. The employer is obligated to explore an employee’s needs and possible accommodations with an open mind and problem-solving attitude. It is unlawful for an employer to refuse to engage in the interactive process entirely and instead categorically insist on a single, one-size-fits-all accommodation.
It is imperative that an employee and/or the local association demand that the employer confirm and explain its position in writing. Sometimes such a demand alone suffices to make an employer reconsider an unlawful decision. Check with your local association about possible legal claims under the ADA as well as any claims under other laws that may apply.
May an employee reject workable accommodations and return to the interactive process in order to obtain the specific accommodation they are looking for? No. Under the ADA, an employee is entitled to a reasonable accommodation, not necessarily their preferred accommodation.
How much medical documentation is necessary or appropriate for an ADA accommodation? There is no hard and fast rule here. The extent of the medical documentation that must be provided, and the degree to which an employer may demand additional documentation, depends on the circumstances. The touchstone here is informing the employer of the existence and extent of the disability and the need for a workplace accommodation.
What if the employer takes the position that its general coronavirus mitigation steps are the reasonable accommodation? Where an employer’s general health and safety protocols do not adequately address an employee’s concerns (and those concerns are substantiated by a health care provider or rehabilitation specialist), the employee may request, and the employer must engage in, the interactive process to identify reasonable accommodations.
If the employer insists that no accommodation is necessary, a member should contact their local association to pursue possible next steps, including filing an administrative charge alleging disability discrimination.
Once an accommodation is identified through the interactive process, can the parties later modify that accommodation? Yes. The duty to engage in the interactive process and to accommodate a disabled employee is an ongoing one. This means that as circumstances change, parties can and should reengage in the interactive process. An employer, however, may not unilaterally remove agreed upon accommodations without engaging in the interactive process with the employee.