Qualified Individuals with Disabilities are Entitled to Reasonable Accommodations at Work
In our last article, we discussed certain protections disabled individuals are entitled to in the hiring process. As we mentioned, under both federal and state law an employer cannot refuse to hire a qualified person who is disabled so long as the person is capable of performing the essential functions of the job with or without reasonable accommodations. But what does it mean to be a “qualified individual” or require a “reasonable accommodation”? These are legal terms of art that we will explain in greater detail below. Qualification: In order to be protected under federal and state discrimination laws in an employment context, a person with a disability/handicap must be “qualified” for the position they are applying for. This means that an applicant must be capable of performing the essential functions of the position with or without reasonable accommodations. Job descriptions often contain information about which functions an employer deems essential, which can help applicants determine which positions they might be qualified for. In determining which functions of a job are essential, and which are merely marginal, an employer might consider: The main objective of the position. If there are other employees who can perform some of the duties. If the function is highly technical or specialized. The amount of on-the-job training associated with the function. What is a Reasonable Accommodation? A reasonable accommodation can be any accommodation that helps an applicant or employee fulfill the job requirements without imposing an undue hardship on the employer. If an applicant needs an accommodation to perform the essential duties of the position there are several different types of accommodations that may be available to them: 1. A change in the physical workspace. Examples: installing ramps, changing the lighting, adding heat or air conditioning, etc. 2. Modification of the job requirements. Example: assigning non-essential tasks to another employee. 3. Allowing the employee to perform a task in a different way. Examples: standing instead of sitting, use of a computer instead of handwriting, etc. 4. Adapting the schedule. Examples: part-time schedule, frequent breaks, late start, etc. It is important to note that job applicants do not have to disclose a disability or history of disability to an employer. However, in order to receive a reasonable accommodation, disclosure and documentation of the disability are often necessary. If you have specific questions about employment law or disability discrimination in the hiring process, please contact us for further information. For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
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Educational Benefits Outweigh Costs to Private Placements
A recent article in Cape Cod Today reported that, among all Cape Cod school districts, 237 students with special needs had been placed in private placements during the last school year at a cost to taxpayers of $19 Million. As is regrettably common when the costs of educating our most severely disabled children are highlighted, this article elicited comments from readers suggesting that these children are merely being “warehoused” and that they derive no educational benefit from these placements. Nothing could be further from the truth. As an attorney whose practice frequently involves advocating for specialized placements for children with significant special needs, I can attest to the benefits that flow to these youngsters, not only academically but socially and emotionally as well. Critics of private placements overlook the reality that children are not placed outside of their local school district simply upon their parents’ request. A child’s entitlement to a private placement comes into effect only upon a finding that his local school cannot provide appropriate services to allow him to make meaningful progress in the area of his disability. In other words, a child does not get a private placement unless his local school is unable to meet his needs. No parent derives pleasure from having his or her child spending hours on a bus in traffic every day traveling to a private school, which is what many of my young clients must do. It is safe to say that, in a perfect world, all of these students would be educated in their home town in their local school alongside friends from their neighborhood. The reality is, however, that there is an abundance of significantly disabled children who have needs that their local school districts cannot serve, or choose not to serve, even though it would often be more cost effective to create more intensive programs within the District. Faced with no alternatives, these children have the absolute right to attend a private school elsewhere, one where they have the same opportunity to learn or to read or to simply gain life skills that will enhance their ability to live a productive life. The cost to society of not providing this type of critical education to our most needy and deserving students is staggering – both monetarily and morally – and dwarfs the $19 Million spent on Cape Cod last year. Written by Jeff Sankey For more information, please contact us at 781-930-3127. Notice: JavaScript is required for this content.
Read MoreParents Have the Right to Observe Their Child’s Special Education Program
What rights do parents have to observe their child in school? When you as a parent have concerns about your child’s performance, a classroom observation can provide important information about your child’s program. If you believe your child’s educational placement or program is inappropriate, parents can observe the classroom themselves or they can hire an expert or educational specialist to visit the classroom. In cases where the parents are considering filing a request for a due process hearing before the Bureau of Special Education Appeals (“BSEA”), an evaluation by an expert is almost always necessary. Without an observation by an expert, it is very difficult to prevail in a due process hearing before the BSEA. For instance, in a 2007 case before the BSEA, the hearing officer gave “little weight” to a parents’ expert who did not observe the student. If you wish to file a request for a due process hearing with the BSEA, an observation is an extremely important step in the process. What Rights Do Parents and Their Experts Have to Observe? In 2009 the Massachusetts legislature enacted a law strengthening the rights of parents and their evaluators to observe their child in school. The law requires that upon request, parents and parent-designated evaluators must be provided timely access to observe a child’s current program and any future program proposed for the child, including both academic and non-academic components of any program. This means that an observation can include gym class, art class and other specials in addition to academic classes like Mathematics and English Language Arts. All of these classes together make up your child’s educational program so it may be important to see your child in all of these classes to get a complete picture of his or her school day. While the law does not specify a certain amount of time for an observation, it must be of “sufficient duration and extent” to enable a parent or expert to evaluate the child’s performance in the classroom. For further clarification on this point, the Massachusetts Department of Elementary and Secondary Education (“DESE”) issued an advisory stating that the complexities of the student’s needs as well as the programs to be observed should determine the scope and length of the observation. The DESE made clear that school districts should avoid rigid adherence to defined time limits that do not take into account the student’s needs and the settings to be observed. In fact, in another case before the BSEA, a school district had a policy stating that no parent was allowed to visit the classroom for more than 1 hour per month. When this policy was challenged by a parent who sought a longer observation of her child, the hearing officer found that the District’s policy failed to take into account the student’s needs and the settings to be observed. As a result, the hearing officer permitted the parent to conduct an observation that was much longer and more continuous than the 1 hour per month policy set by the District. Limitations
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