The Americans with Disabilities Act (ADA) is a federal civil rights law designed in part to protect people with disabilities from discrimination in employment. The Oregon Fair Employment Practice Act also prohibits employment practices that discriminate on the basis of disability. For the purposes of this legal resource, we will be looking specifically at the concept of “Reasonable Accommodations” for individuals with disabilities currently employed within school districts and community colleges: when an accommodation is required, when an accommodation is not required, best practices to avoid liability, and some examples of how cases arising over reasonable accommodation requests in school district have been decided by courts in our jurisdiction. This is a complicated area, so we encourage administrators and HR professionals who need assistance while undertaking the process of determining whether a reasonable accommodation is required by law to call an OSBA/PACE pre-loss attorney, at 1-800-578-6722 or email@example.com.
Reasonable Accommodation Basics
Title I of the ADA requires reasonable accommodation to enable a qualified individual with a disability to perform the essential functions of a job. An accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. Similarly, under Oregon Law, it is a violation of the Fair Employment Practice Act if the “employer does not make reasonable accommodation to the known physical or mental limitations of a qualified individual with a disability who is a job applicant or employee, unless the employer can demonstrate that the accommodation would impose an undue hardship on the operation of the business of the employer.”
When an Accommodation Is Required
An employer is only required to accommodate a “known” disability of a qualified applicant or employee. A qualified employee means “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” The accommodation requirement generally will be triggered by a request from an individual with a disability, who frequently will be able to suggest an appropriate accommodation. Accommodations must be made on an individual basis, because the nature and extent of a disabling condition and the requirements of a job will vary in each case. If a person with a disability requests, but cannot suggest, an appropriate accommodation, the employer, employee and the employee’s physician should work together to identify one. There are also many public resources that can provide assistance at identifying accommodations without cost (see “Resources” at the end of this legal update). Examples of reasonable accommodations might be: a stool so a teacher does not need to stand in front of a classroom, a PC projector for an employee who is allergic to chalk, or intermittent unpaid leave to deal with disability treatments.
When an Accommodation Is Not Required
If the individual does not request an accommodation, the employer is not obligated to provide one except where an individual’s known disability impairs his/her ability to know of, or effectively communicate a need for, an accommodation that is obvious to the employer. An accommodation is not required if it would remove essential functions of the employee’s job. And, importantly, an employer does not have to provide a reasonable accommodation that would cause an “undue hardship” to the employer. “Undue hardship” means significant difficulty or expense and focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of providing a specific accommodation. Undue hardship refers not only to financial difficulty, but to reasonable accommodations that are unduly expensive, substantial, or disruptive, or those that would fundamentally alter the nature or operation of the business. An undue hardship must be based on an individualized assessment of current circumstances that show that a specific reasonable accommodation would cause significant difficulty or expense. If the district believes it can deny an accommodation on grounds of undue hardship, we strongly suggest consulting with an attorney before doing so. Reasonable accommodations are not required if they include removing essential job functions, creating new jobs, providing a new supervisor, lower production standards, or providing personal need items such as eye glasses and mobility aids.
Suggestions for Districts Working with Employees Who Request Accommodations
- Identifying a Request: An individual may use plain English and need not mention the ADA or use the phrase “reasonable accommodation” when requesting an accommodation. Therefore, any time an employee indicates that he/she is having a problem and the problem is related to a medical condition, the employer should consider whether the employee is making a request for accommodation under the ADA.
- Who Should Respond to Request: Districts may want to designate a person to handle accommodation requests and then train all supervisors and administrators to consult with that designated person if they receive an accommodation request.
- Engaging in the Interactive Process: The district and the employee with a disability should engage in an informal process to clarify what the individual needs and identify the appropriate reasonable accommodation. The employer may ask the individual relevant questions that will enable it to make an informed decision about the request. While the individual with a disability does not have to be able to specify the precise accommodation, he/she does need to describe the problems posed by the workplace barrier. Additionally, suggestions from the individual with a disability and the individuals’ physician may assist the employer in determining the type of reasonable accommodation to provide. Courts have found that interactive process requires: “(1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee’s request; and (3) offering an accommodation that is reasonable and effective.”
- How Long Before You Must Respond: A District must respond to a request for accommodation “in a timely manner.” Court cases show that even waiting as long as two months can be too long to wait, depending on the circumstances. The Equal Employment Opportunity Commission (EEOC) considers “an accommodation delayed is an accommodation denied.” Courts in Oregon have found that a response of 10 days was not “unreasonable.”
- Requesting Medical Information: Under the ADA, employers must limit the scope of a medical inquiry in response to an accommodation request. When the disability or need for accommodation is not obvious, an employer may require that the employee provide medical documentation to establish that the employee has an ADA disability, to show that the employee needs the requested accommodation, and to help determine effective accommodation options.
- Who Chooses the Accommodation: What if there are multiple accommodation options, some which are much more costly than others? According to the EEOC, employers get to choose among effective accommodation options. If more than one accommodation would be effective for the individual with a disability, or if the individual would prefer to provide his or her own accommodation, the individual’s preference should be given first consideration.
- When an Employee Suggests Leave as a Reasonable Accommodation: Unlike the Family and Medical Leave Act (FMLA) and the Oregon Family Leave Act (OFLA), which requires covered employers to provide 12 weeks of leave (or more for qualifying OFLA leaves), there is no specific amount of leave time required under the ADA. Instead, leave time is approached like any other accommodation request: the employer should provide the amount of leave needed by the employee unless doing so poses an undue hardship. This is a complex area and we encourage districts looking for additional information regarding the interplay between the ADA and the FMLA to consult an attorney or visit FMLA, ADA, and Title VII (EEOC Guidance) at http://www.eeoc.gov/policy/docs/fmlaada.html.
- What if a Request Cannot Be Accommodated: The ADA specifically lists “reassignment to a vacant position” as a form of reasonable accommodation. Reassignment is the reasonable accommodation of last resort and is required only after it has been determined that: (1) there are no effective accommodations that will enable the employee to perform the essential functions of his/her current position, or (2) all other reasonable accommodations would impose an undue hardship. An employee must be “qualified” for the new position. This requirement is not limited to the employee’s school, reassignments must be considered in the entire district.
Sample Accommodation Cases Involving Schools
Rider v. Lincoln County Sch. Dist., 2015 U.S. Dist. LEXIS 23128 (D. Or. Feb. 24, 2015). Employee, a maintenance worker at a school, was injured in an accident. After returning from medical leave, he told District employees that he was disabled but was released to work with the restriction that he could not lift over 50 pounds. District thought his lifting restriction was unreasonable and requested employee complete a fitness for duty questionnaire, including an assessment of plaintiff's ability to perform certain essential job functions. Employee refused to have his doctor fill out this questionnaire and instead insisted on returning to work with the accommodations he previously requested. Court found that plaintiff failed to meet his initial burden of establishing his need for reasonable accommodation. District repeatedly identified what information was necessary to determine the extent of employee’s disability and what accommodations would be appropriate. District also repeatedly provided employee a list of specific tasks and requested that his doctor indicate what he could and could not do. The Court found that an employee "is not entitled to refuse to provide information that is critical to initiating a meaningful interactive process directed at determining reasonable accommodations for him, and then later protest that he was unfairly deprived of those accommodations.”
Takeaway: District Employees may not refuse to provide essential medical information that the District needs to determine reasonable accommodation.
Leighton v. Three Rivers School District, 2014 U.S. Dist. LEXIS 180736 (D. Or. Dec. 15, 2014). A school janitor was injured in a motorcycle accident and as a result he was limited in his physical abilities. The janitor was able to return to work in a temporary part time position to accommodate his light duty requirements. The janitor went back on leave in order to have surgery and returned, requesting light duty work again including special support when lifting more than 50 pounds. District denied that request, as the accommodation would not enable the janitor to perform the essential functions of his job. The Court held the district did not fail to reasonably accommodate the janitor’s disability. Employers are not required to create new positions to accommodate a disabled employee. Because the district engaged in such an interactive process, even though no accommodations were considered reasonable until the janitor was released for full duty, the district did not fail to accommodate the janitor’s disability.
Takeaway: Districts are not required to create new positions to accommodate employee, but engaging in an interactive process is essential to comply with ADA.
Johnson v. Board of Trustees of the Boundary County School District, 666 F.3d 561 (9th Cir. Idaho 2011). Teacher had a history of depression and bipolar disorder. In the summer before the expiration of her license, the teacher experienced a major depressive episode that rendered her unable to complete her required three credits of professional development training. The board denied the request for provisional authorization to teach without a teaching certificate, reasoning that she had five years to get the classes done and waited until the last second to ask for exemption. Teacher was then terminated, and brought suit claiming a violation of the ADA. Court held that teacher was not “qualified individual with a disability,” as she lacked the teaching certificate qualifying her for the job. The fact that she could have obtained the certificate with “reasonable accommodation” did not matter, because an employer is not required provide reasonable accommodations to enable the disabled applicant to satisfy the requisite skills, experience, education, and other job-related requirements of the position if the applicant cannot satisfy the requirements on her own.
Takeaway: Districts are not required to provide reasonable accommodation to enable disabled employee to meet basic qualifications of job.
Stamper v. Salem-Keizer Sch. Dist., 195 Or. App. 291, 293 (2004). An eighth grade math teacher was injured in a car accident, developing severe hyperacusis, an "abnormal hearing sensitivity." The teacher’s hyperacusis caused him intense, debilitating headaches whenever he was exposed to loud noises or to moderate noises for an extended period. The employee argued that although his employer offered him his choice of teaching loads, the employee’s hyperacusis prevented him from teaching more than .33 time and that the employer was aware of that fact. There also was evidence that, in response to the employee’s continued requests for full-time employment in a quiet non-teaching environment, the employer did not offer the employee such employment even though it had open non-teaching positions for which the employee was qualified. The court held that a jury could find that the accommodations offered were unreasonable because the employee was not offered an accommodation allowing him to continue working for the employer full time.
Takeaway: Districts should look carefully at all vacant positions to see whether reassignment is appropriate in the case of a disabled employee who can no longer perform the functions of his or her job.
Bourgo v. Canby Sch. Dist., 167 F. Supp. 2d 1173, 1174-75 (D. Or. 2001). Employee was transitioned from his job as a principal to a newly created position that combined administrative and counseling duties. Soon after, he was diagnosed as suffering from disabling anxiety and, thereafter, Major Depressive Disorder. He took an extended medical leave, during which time the superintendent recommended to the School Board that employee be dismissed. The Board voted to dismiss employee and employee appealed the District’s termination decision to the Oregon Fair Dismissal Appeals Board (FDAB). After a hearing, the FDAB voted to uphold his termination. Employee did not seek direct judicial review of the FDAB’s decision. Instead employee filed suit in federal court claiming in part that District violated the ADA by terminating Plaintiff because of his disability even though Plaintiff's “physical and mental impairments, with reasonable accommodation, would not have prevented plaintiff from performing the essential functions of his position with defendant.” District argued that because FDAB withheld his termination, he did not have a claim. Court disagreed, finding that FDAB’s decision did not have preclusive effect in its finding that employee was terminated for a legitimate, non-discriminatory reason. Employee was allowed to proceed with his lawsuit.
Takeaway: Just because FDAB upholds termination does not mean you are protected from an ADA discrimination lawsuit.
ADA.gov: (http://www.ada.gov/index.html) The Department of Justice Civil Rights Division’s website gives overviews, technical assistance, and texts of the laws.
EEOC: The EEOC’s Enforcement Guideline regarding reasonable accommodations can be found here: http://www.eeoc.gov/policy/docs/accommodation.html. This Enforcement Guidance clarifies the rights and responsibilities of employers and individuals with disabilities regarding reasonable accommodation and undue hardship.
Job Accommodation Network: The Job Accommodation Network (JAN) is a free service of the U.S. Department of Labor's Office of Disability Employment Policy. JAN is a great resource for ideas on low cost accommodations specifically for educators that perhaps you may not have thought of. https://askjan.org/media/educators.html. JAN also provides free consulting services for state and local government employers, including one-on-one consultation about all aspects of job accommodations, ADA compliance assistance, and referral to helpful resources. You can find more information about JAN and its services here: https://askjan.org/empl/index.htm.
Accommodations for STEM Teachers: http://www.workplacererc.org/stem/modules/index.php
OSBA/PACE pre-loss attorneys: 1-800-578-6722 or firstname.lastname@example.org.
 29 C.F.R. pt. 1630 app. § 1630.2(o) (1997).
 ORS § 659A.112
 Bates v. UPS, 511 F.3d 974, 989 (9th Cir. 2007) (citing 42 U.S.C. § 12111(8)).
 Section 27, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act “General Guidance,” available at: http://www.eeoc.gov/policy/docs/accommodation.html#general
 U.S. E.E.O.C. v. UPS Supply Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010).
 Bergin v. N. Clackamas Sch. Dist., 2005 U.S. Dist. LEXIS 42252 (D. Or. Jan. 12, 2005).
 29 C.F.R. § 1630.2(m) (1997); 29 C.F.R. pt. 1630 app. §§ 1630.2(m), 1630.2(o)(1997).
 Section 27, EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act “Reassignment”, available at: http://www.eeoc.gov/policy/docs/accommodation.html#reassignment