getting practical ada and accommodation issues on campus michael c. harrington, esquire murtha...

GETTING PRACTICAL GETTING PRACTICAL ADA AND ACCOMMODATION ADA AND ACCOMMODATION

ISSUES ON CAMPUSISSUES ON CAMPUS

Michael C. Harrington, EsquireMurtha Cullina LLPLaura Rothstein, ProfessorUniversity of LouisvilleSusan Wheeler, EsquireJames Madison University

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1. Federal and/or State Law

2. Interactions with other laws, such as FMLA, Fair Housing Act, etc.

3. Who is Disabled? The 2008 ADA Amendments have opened issues

previously settled.

4. What is a reasonable accommodation? New technology? Is the person a direct threat?

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Elements of a Disability/Reasonable Accommodation Claim

1. Is the person legally disabled? Federal Law? State Law?

2. If so, engage in an “interactive process” to discuss whether a reasonable accommodation can be provided.

3. Provide a reasonable accommodation, unless to do so creates an “undue hardship.”

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Who Is Legally Disabled?

Federal Law ADA with the 2008 Amendments Rehabilitation Act Fair Housing Act

State Law

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Perceived Disability

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Second Chance

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Direct Threat

To self? To others? Accommodation eliminates threat? Perceived? Focus on objective behaviors.

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Requesting An Accommodation

What is your policy/procedure? Who is involved? Where is it published? Are Supervisors/Faculty trained?

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Essential Job Functions

Person must be qualified So what is “qualified”?

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The Interactive Process

Dialogue…two-way conversation. Open Mind! Problem Solving Mode.

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Common Accommodations

Admissions Process Examination Procedures/Additional Time Modification of Deadlines Alternative/Flexible Work Schedules Relief from Non-Essential Job Functions Transfer to Alternative, Available Positions Auxiliary Aids/Services

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Managing Under-Performing Students/Employees What are the specific issues? Has the student/employee

been put on notice? Documented?

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Questions? Comments? Concerns?