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