SH&A April 2014

Salome Heyward & Associates Conference Services

Addressing Graduate Students

Accommodation Issues

April 21 - 22, 2014Presented by

Salome Heyward, JD

SH&A April 2014

Key Compliance Issues

Academic knowledge to workplace performance

Making Qualified Status DeterminationsEnforcing Technical/Professional StandardsAddressing Unsafe or Inappropriate

Student Behavior Avoiding Discriminatory TreatmentAre they students or are they employees

SH&A April 2014

Academic Knowledge to Workplace Performance

Requirements must be “educationally rationally justified…” and involve a reasoned and informed process reflecting: A group of people who are trained

knowledgeable and experienced; Rational and careful review of program

requirements; Consideration of pertinent alternatives; and

SH&A April 2014

Academic Knowledge to Workplace Performance (cont.)

Necessary program objectives

Special care should be taken with physical capability and proficiency standards

Licensure requirements alone are not sufficient (in most instances)

SH&A April 2014

Making Qualified Status Determinations

There must be an individualized assessment that includes consideration of:

1. The student’s functional limitations and the relevant impact on his/her ability to participate or perform

2. The essential elements and requirements of the program, course of study or activity

3. The impact the requested accommodation(s) would have on the educational program, as well as on the student

SH&A April 2014

Making Qualified Status Determinations (cont.)

Academic success does not equal entitlement to site placement

When is the decision entitled to deference Avoiding categorical denials The lessons of Southeastern Community

College v. Davis The responsibility to disclose the disability to

site officials

SH&A April 2014

Enforcing Technical/Professional Standards

Performance of necessary job related skills

The standards of a profession are important

Implementing proper accommodation procedures: An individualized assessment; Full exploration of accommodation options;

and Engaging in a fair and objective dialog with

the student

SH&A April 2014

Enforcing Technical/Professional Standards (cont.)

Responding to requests for waiver or modification of requirements

Establishing that instructional goals and clinical experiences are supportive of program objectives

Legitimate non-discriminatory reasons for different treatment

SH&A April 2014

Enforcing Technical/Professional Standards (cont.)

Adverse determinations: A fundamental alteration or undue

burden/hardship; The student’s failure is unrelated to his/her

disability; The requested accommodation is not

tailored to meet the student’s identified need; or

The student is not qualified

SH&A April 2014

Unsafe or Inappropriate Student Behavior

Two applicable standards: direct threat situations and health and safety concerns relative to placement assignments

Direct Threat Situations:

Evidence of a “significant risk to the health and safety of others…” established by: a. reasonable medical judgment that relies on the most current

medical knowledge and/or

b. the best available objective evidence (actions or statements of the individual; a past pattern of conduct or occurrences, etc…)

SH&A April 2014

Unsafe or Inappropriate Student Behavior (cont.)

Direct Threat Situations (cont.)

Conduct an individualized assessment to determine:a. the nature, duration, severity and probability of

the potential risk or danger

b. whether consideration of all relevant evidence establishes that there is a high probability of a “substantial harm”

c. the threat can be eliminated by provision of a reasonable accommodation

SH&A April 2014

Unsafe or Inappropriate Student Behavior (cont.)

Direct Threat Situations (cont.)

Policies and procedures should ensure that:a. Knowledgeable experts are involved in the

determination

b. All relevant and pertinent information is considered

c. Due process is provided to the individual including notice of the reason for the decision, a right to challenge the decision or offer facts to refute it and an opportunity to appeal

SH&A April 2014

Unsafe or Inappropriate Student Behavior (cont.)

Health or safety concerns in a clinical, internship or other placement assignment:

Action may be taken if a student’s conduct or behavior “has the reasonably foreseeable potential to cause harm to clients.”

There need only be a “valid basis” for the belief or “reasonable concern” that the behavior is potentially harmful

SH&A April 2014

Unsafe or Inappropriate Student Behavior (cont.)

Health and safety concerns (cont.):

The behavior need not be in the placement environment

The institution is required: To present actual, concrete evidence of

inappropriate behavior Provide notice to the student of the

standards violated

SH&A April 2014

Unsafe or Inappropriate Student Behavior (cont.)

Health and safety concerns (cont.) Present the basis for the belief that she/he

can not meet the standard Provide the student a reasonable

opportunity to modify her/his behavior in compliance with the standard

SH&A April 2014

Avoiding Discriminatory Treatment

Disparate treatment based upon the existence of a disability;

Denial of opportunities in response to the need for particular accommodations;

Failure to provide “effective” accommodations; Failure to modify requirements or standards that

are not “essential” program objectives; and/or Not addressing inappropriate or discriminatory

behavior of placement supervisors

SH&A April 2014

Employment Compliance Issues

Incorporating EEOC guidelines regarding the definition of disability

Meaningful access issues should not be confused with job accommodation issues.

The focus is on the essential functions of the employee’s job – Employers do not have to waive, reassign or

otherwise eliminate essential functions to accommodate employees with disabilities.

SH&A April 2014

Employment Issues (cont.)

Factors to consider in determining whether a duty or responsibility is an essential function include: The position description; The employer’s judgment; The percentage of time spent performing the task; The consequence of not requiring the employee to

perform the task; and The actual work experience of the employee, other

employees performing the same job and/or past incumbents in the job.

SH&A April 2014

Employment Issues (cont.)

Marginal functions of a job should not be used to place the qualified status of an employee in question.

When legitimate questions are raised concerning an employee’s qualified status, the burden is on the employee to establish that there is a reasonable accommodation that would enable him/her to perform the essential functions of the job.