1. Salome Heyward & Associates Conference Services Addressing Graduate Students Accommodation Issues April 21 - 22, 2014 Presented by Salome Heyward, JD Addressing Graduate Students Accommodation Issues April 21 - 22, 2014 Presented by Salome Heyward, JD SH&A April 2014

2. Key Compliance Issues  Academic knowledge to workplace performance  Making Qualified Status Determinations  Enforcing Technical/Professional Standards  Addressing Unsafe or Inappropriate Student Behavior  Avoiding Discriminatory Treatment  Are they students or are they employees SH&A April 2014

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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. SH&A April 2014