ada on college campuses presentation 09

Accessibility and Accommodations: Campus Health and Safety Updates

9/27/2021

© 2021 Husch Blackwell LLP. All Rights Reserved.

Accessibility and Accommodations: Campus Health and Safety Updates Webinar

September 27, 2021


Theresa M. Mullineaux314.480.1742

[email protected]

Demetrius J. Peterson816.983.8181

[email protected]

Presenters

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ADA Overview


• “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation…”

42 U.S.C.A. § 12182(a)

The Americans with Disabilities Act

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Section 504 / ADA

• General purpose: eliminate discrimination and exclusion from/denial of benefits or services, programs, and activities based on disability

• Section 504: universities/colleges receiving federal financial assistance from the Department of Education

• ADA

Title I: employment

Title II: public universities/colleges

Title III: private universities/colleges


Equal Access to Postsecondary Education

• Both public (Title II) and private (Title III) schools must provide equal access to postsecondary educational opportunities

• Only required to accommodate students who report a disability and request help

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Role of the Office for Civil Rights (OCR)

• OCR is responsible for eliminating discrimination on the basis of disability against students with disabilities

• OCR receives numerous complaints and inquiries in the area of elementary and secondary education involving Section 504 of the Rehabilitation Act of 1973

Most concern identification of students who are protected by Section 504 and the means to obtain an appropriate education for such students


1. A physical or mental impairment that substantially limits one or more major life activities

2. A record of having an impairment that is substantially limiting to a major life activity

3. Being regarded as having an impairment that is substantially limiting to a major life activity

What is a disability?

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• Caring for oneself

• Performing manual tasks

• Walking

• Seeing

• Hearing

• Speaking

• Breathing

• Learning

• Working

• Sitting

• Reaching

• Reading

• Concentrating

• Communicating

• Working

• Major bodily functions

What are examples of major life activities?


Prohibitions

• The ADA prohibits:

Denying participation

Allowing participation in an unequal benefit

Allowing participation in a separate benefit

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Requirements

• Must make reasonable modifications to allow access to individuals with disabilities unless:

Such modifications would fundamentally alter the nature of the goods, services, facilities, etc. provided, or

Would result in an undue burden


Undue Burden / Undue Hardship

• A significantly difficult or expensive action

• Factors:

Nature and cost of the accommodation

Financial resources of the institution

Impact of the accommodation on others at the institution

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What Isn’t Required

• Unfair advantages

• Extra perks

• Meeting the student’s precise demand

Flexibility and problem solving are key to accommodating students in an equitable manner!


Important Updates

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Refresher: Service Animals

• ADA requires clear policy allowing service animals.

• Requirements:

Service animals must be in control, with devices (if possible) or with words.

Businesses may exclude service animals ONLY IF:

• (1) not housebroken; OR

• (2) out of control


(1) Is the animal required because of a disability? AND

(2) What work or task has the animal been trained to perform?

What Can You Ask About a Service Animal?

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C.L. v. Del Amo Hospital, Inc.

• Patient was denied permission to bring her non‐certified service dog into a treatment center

• Center claimed dog would interfere with patient’s therapy

• District court ruled that self‐trained dog is not a certified service animal under the ADA


C.L. v. Del Amo Hospital, Inc.

• ADA prohibits certification requirements for service animals

• ADA requires only that an animal be trained, it does not mandate who does the training

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Rossley v. Drake University

• Male student diagnosed with dyslexia filed a suit alleging the university violated the ADA by failing to grant him accommodations (that he had previously received for classes) during a disciplinary hearing for sexual assault


Rossley v. Drake University

• Request for accommodations must be connected to stated disability to receive accommodations in disciplinary hearing

• Even if university is aware of accommodations in other contexts, specific requests must be made for each new accommodation

• Request must be specifically tailored to allow participation

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• Plaintiff was potentially exposed to COVID‐19 when one of his professors tested positive. After informing his bosses, they sent him home from work

• He then claimed he was fired based on his possible exposure to COVID‐19, a status he claims acted as a perceived disability

Parker v. Cenlar FSB


• Possible exposure to COVID‐19 does not constitute a disability under the ADA

• Terminated employee could not sue under the ADA by arguing he was perceived as disabled due to potential COVID exposure

Parker v. Cenlar FSB

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EEOC Guidance on “long COVID”

• EEOC recognizes that “long COVID” may be a disability under the ADA and Section 501 of the Rehabilitation Act in certain circumstances:

Must substantially limit one or more of the major life activities of the individual (“actual disability”);

A person with a record of such an impairment (“record of”);

Or a person who is regarded as having such an impairment (“regarded as”)


Protections Available for Individuals with “long COVID”

• Higher education institutions may need to make changes to the way they operate to accommodate a person’s long COVID‐related limitations

• Reasonable modifications may include:

Providing additional time on a test for a student who has difficulty concentrating

Modifying a policy to allow a person who experience dizziness when standing to be accompanied by their service animal that is trained to stabilize them

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COVID‐19 Vaccine Mandates


• Measles, mumps, rubella, and meningococcal vaccines are all typically required

• Universities often follow state requirements for vaccinations

Many Schools Require Vaccinations

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Medical and Religious Exemptions

• Most states grant vaccine exemptions for medical or religious reasons

People can be granted an exemption from vaccination if it contradicts their sincere religious beliefs

Only California, Connecticut, Maine, Mississippi, New York, and West Virginia do not allow religious exemptions

• A smaller number allow philosophical exemptions as well

These exemptions are not restricted to religious beliefs, but include moral, philosophical, or other personal beliefs


Exemptions By State/Territory

Image: States With Religious and Philosophical Exemptions From School Immunization Requirements, NATIONAL

CONFERENCE OF STATE LEGISLATURES (Apr. 30, 2021), https://www.ncsl.org/research/health/school‐immunization‐exemption‐state‐laws.aspx.

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• Alabama

• Alaska

• Arizona

• Arkansas

• Florida

• Georgia

• Idaho

• Indiana

• Iowa

• Missouri

• Montana

• North Dakota

• Ohio

States Prohibiting Proof of Vaccination

• Oklahoma

• South Carolina

• South Dakota

• Tennessee

• Texas

• Utah

• Wyoming


Many Schools Require COVID Vaccine

• 589 campuses require the COVID vaccine

Most require for all students, although some only require for residential students

• Image: Andy Thomason & Brian O’Leary, Live Coronavirus Updates, CHRONICLE OFHIGHER EDUCATION (Sept. 23, 2021, 1:05 PM), https://www.chronicle.com/blogs/live‐coronavirus‐updates/heres‐a‐list‐of‐colleges‐that‐will‐require‐students‐to‐be‐vaccinated‐against‐covid‐19.

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Klaassen et al. v. Trustees of Indiana University

• 8 students sued Indiana University to block its vaccine mandate, which does not require proof of vaccination and is in effect for fall 2021 only

• Students expressed various reasons for opposing the mandate, including:

Religious objections

Prior COVID‐19 diagnoses

Concerns about developing acne from wearing masks

Beliefs that “vegans and pescatarians are less likely to experience serious illness” and that “masks are silly”


Result: Mandate is Constitutional

• “Recognizing the students’ significant liberty to refuse unwanted medical treatment, the Fourteenth Amendment permits Indiana University to pursue a reasonable and due process of vaccination in the legitimate interest of public health for its students, faculty, and staff.”

• “In short, the balance of harms and the public interest favor Indiana University…”

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Difficult to Enforce

• How will exemption requests be vetted?

• What will the penalties be for falsifying information?


• Vaccinated students have been offered prizes and greater access to events

• Some schools are banning non‐vaccinated students from campus.

Enforcement Ideas

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Know Your State’s Laws!

Key Takeaway


• Subject to reasonable accommodations, schools may require most vaccinations for employees physically entering the workspace

• If an employee cannot be vaccinated because of a disability, the employer cannot require compliance unless that individual would pose a “direct threat” to the health/safety others in the workplace

School Employees

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What is a “Direct Threat”?

• A “significant risk of substantial harm” that cannot be eliminated or reduced by reasonable accommodation

• Two Step Determination:

Is there a direct threat?

Can a reasonable accommodation reduce or eliminate the threat?


Is There a Direct Threat?

• Four factors:

The duration of the risk

Nature/severity of the potential harm

Likelihood that the potential harm will occur

Imminence of the potential harm

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• Requiring employee to wear a mask

• Giving the employee a staggered shift

• Improved ventilation in work environment

• Limiting employee’s contact with others

• Telework

Potential Reasonable Accommodations to Reduce Threat


COVID‐Specific Vaccine Requirements

• Many states are prohibiting employers from mandating COVID vaccinations

Some prohibit all industries from requiring vaccines

Others permit mandated vaccinations only for healthcare workers

• See Husch’s 50 State Survey for details about your state

COVID‐Specific state legislation may impact your school’s typical ability to require vaccines. Be sure to confirm your state’s regulations to

ensure any vaccine requirement complies with state laws.

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ADA On Campus


Disability Services Offices

• Accommodation requests are submitted to and decided by disability service offices on campus

• Additional roles:

Raise awareness and provide information

Counseling and advocacy

Training

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Interactive Process Explained

• Begins when student requests accommodations and provides documentation

• University reviews documents and attempts to develop an accommodation that provides equal access in a reasonable manner

• Student can provide feedback and request additional/adjusted accommodations process continues


Accommodation Request Reminders

• Accommodation requests and supporting documents are reviewed on an individualized, case‐by‐case basis

• University employees outside of the disability services offices can be consulted to determine the appropriateness of requested accommodations and how best to implement certain accommodations

• Temporary accommodations are an option while engaging in the interactive process

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Reasonable Accommodations on Campus

• Common accommodations include:

Extra time on exams

Assistance from note‐takers

Accessible classrooms

Allergy‐friendly meal options


Disability Service Offices Tips and Tricks

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• Make them aware of differences between accommodation process in high school and college, including:

Need to provide documentation of disability

Must request reasonable accommodations on their own

School is not required to provide personal services

Schools can refuse requests for accommodations if they impose undue hardships or change the nature of the program

Educate Incoming Students


Be Flexible

• Confer with each student to create a personalized plan that works for everyone

• Don’t make assumptions about a student’s abilities or necessary accommodations

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Be Consistent

• Treat students with disabilities with the same courtesies you would afford to other students

• Make sure all requests for accommodations go through the disability services office, rather than individual faculty


• Ensure recruiting materials are disseminated in an accessible manner both physically and online

• Include information about the disability services office in recruiting/promotional materials

Be Visible

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Be Proactive

• Make accessibility universal, don’t wait for requests

• Examples:

Have nut‐free and gluten‐free options at every meal

Make buildings and websites accessible

Educate other campus departments (athletics, facilities, IT, residential life, etc.)


Questions?

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Husch Blackwell Blog

• Subscribe to our blog at: k‐12legalinsights.com

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ada on college campuses presentation 09

Documents