The American’s With Disabilities Act is the federal statute that protects individuals with disabilities from discrimination based on their health status. The ADA also allows people with disabilities to request accommodations, i.e. changes to their work environment, so that they can complete the duties of their jobs. With the ongoing pandemic, these accommodation issues are becoming a central way that individuals can protect themselves if they have an underlying health condition, but the process can be complicated—so it’s important to understand your rights under the ADA.
What is a disability?
A disability is defined as a health condition that seriously impairs one or more major life activity. Major life activities are those things we think of as everyday aspects of life, like walking, talking, breathing, and so on. Disabilities can be physical impairments or mental health issues and can even be temporary, like a broken leg. Bear in mind that a disability is not the same thing as a diagnosis. The focus of a disability is on how serious the impairment is. Two people who have the same diagnosis may not both be considered disabled.
COVID-19 has created a new type of potential disability for people who have an underlying health condition that may put them at increased risk for serious complications if they contract the disease. These health conditions on their own may not have needed accommodation in the past, but the pandemic has created a situation where these individuals need additional protections. Not all categories of people who are high risk will necessarily qualify as disabled. Both people over the age of 65 and individuals who are pregnant may not qualify for an accommodation unless there is another health condition they have that further puts them at risk if they contract COVID-19.
What is an accommodation?
Accommodations can be just about any modification to a work environment or work expectations that you can think of. They can include changes to schedule, changes to workplace, even modified district policies so that the individual can complete his or her essential job duties. For COVID-19 situations, this could include guaranteed or expanded personal protection equipment, modified room layout or class size, transfer to a vacant position with less student interaction, preference for virtual positions, or even, in limited circumstances, unpaid leave.
The accommodation process
If you believe you need an accommodation, the first step is to talk with your doctor to come up with a list of potential changes to your job environment that would allow you to do the essential functions of your job. It is important to bear in mind that your employer is not required to give you a specific accommodation even if your doctor recommends it. You will most likely benefit if you can come up with a variety of potential ways your work can be modified to let you complete your job. This is also a good time to reach out to your UniServ director for assistance in figuring out what documents you might need and what the process is for your district.
The next step is contacting the district and notifying your administrator of your disability status and need for accommodation. This step is necessary in order to access the protections of the ADA and start the accommodation process. Employers are not required to provide accommodations unless the employee makes a specific accommodation request. Employers can discipline individuals, even for disability-related issues, if they do not know the person has a disability.
Once you contact the district, a district representative should begin the interactive accommodation process. This process can contain some discussion of the exact limitations that the individual has and options for ways the individual can complete his or her job. The district representative could request some additional medical information from you. If this happens, be sure to contact your UniServ director to ask him or her to review any release document before you sign it.
The district administrators can refuse to grant accommodations if those accommodations would create district financial burdens or workload burdens for other employees. For example, if you ask the district to provide a motorized scooter or to remove another employee from a job so that the disabled individual could take it, those would likely be considered to create an undue burden. It never hurts to ask for those potential accommodations as long as you are prepared for a potential rejection.
At the end of this process, there should be a binding list of accommodations that will be made so that you can complete the essential functions of your job. Make sure to get this list in writing and be sure that all who are involved are following it. If people are not following your accommodations, contact your UniServ director or a district administrator to discuss ensuring that accommodations remain in place and are enforced. Failing to follow an agreed accommodation is also considered to be a type of disability discrimination.
The accommodation process can be complicated, and many individuals are understandably nervous about sharing health information with their employers; therefore, make sure to contact your UniServ director for assistance in working through the process.
If you have additional questions, send them to MNEA at coronavirus@mnea.org or look at MNEA’s list of resources and answers to frequently asked questions at mnea.org/coronavirus.
by Vincenzo Iuppa, Associate general counsel
Something Better, fall 2020