Dear Legal Mailbag:
This pandemic has been hard on all of us. Last week, I watched a great legal update that CAS provided, and I learned that the General Assembly passed a new law this year giving students the ability to take up to two “mental health wellness days” each year,” i.e., a “school day in which a student attends to such student’s emotional and psychological well-being in lieu of attending school.” Sadly, I am not aware of any similar provision for teachers or even administrators to take time off to attend to our emotional and psychological well-being in lieu of coming to work. Where are the members of the General Assembly when we need them?
That said, one of the teachers in my building has claimed that the stress of teaching in this second year of the pandemic is just too much for her, and she is asking that she be permitted to work remotely for the foreseeable future. I told her that she would have to present medical evidence of her need to do so before I would consider her request. To my surprise, she presented me with a doctor’s note the very next day which states that she is suffering from stress and anxiety and should be permitted to work from home.
The teacher has called in sick every day since she gave me the doctor’s note, and I am at a loss. Our teachers are back in person this year, and there is no position to which I can assign her. Do I really have to create a remote position for her?
When Will it End?
To answer your question, Legal Mailbag starts by asking whether the teacher has a disability as defined in the Americans with Disabilities Act, i.e., a physical or mental impairment that substantially limits one or more major life activities. If the teacher does not have a disability, that is the end of the discussion (though, of course, she can take sick leave if she is sick). If she does have a disability, the district must talk further with her, as described below. Legal Mailbag notes that the teacher has presented a doctor’s note, but there may be more to the story. The school district may decide to rely on the medical information that the employee presents in determining whether an employee has a disability. However, employers also have the right to ask for an independent medical evaluation to help them make that determination.
If the employer agrees that an employee has a disability, as is often the case, the employer must engage in an interactive dialog with the employee as to (1) whether and how the employee’s disability affects his or her ability to do his or her job, and (2) what reasonable accommodations, if any, are necessary so that the employee can do his or her job. However, this duty to provide accommodations for an employee with a disability is subject to two important conditions.
First, the employee must be able to fulfill the essential functions of the job, with or without accommodation. The ADA (as well as Section 504) only protects employees from discrimination on the basis of disability when they are “otherwise qualified.” That means that persons with disabilities who are not able to perform the essential function of the job, with or without accommodation, are not protected. Indeed, under the Tenure Act, for example, one of the six reasons for which a teacher’s contract may be terminated is “disability as shown by competent medical evidence.”
The question here is whether in-person instruction is an essential duty of this teacher’s job. Being able to teach in-person is typically an essential job function for a classroom teacher. If that is the case here, you may simply inform the teacher that remote work is not an option and that the district will not be creating such a position for her.
Second, the accommodations must be reasonable. When in-person instruction is an essential job function, teaching remotely is not reasonable per se. However, other accommodations to disability may well be reasonable, and, as such, may be required. One possible accommodation for a stress disorder would be to permit the employee to take sick leave to receive treatment and/or recover. Other potential accommodations include a modified schedule or a modified assignment. The key is that any discussion of accommodations must be based on the specific facts as to disability and job function. An accommodation may be reasonable for an employee in one position but not reasonable for an employee in another. For example, a part-time schedule may be reasonable for a high school teacher, given the period structure of the school day, but it may not be reasonable for an elementary school teacher.
Here, once you (and your central office administration) inform the teacher that you will not be creating a remote teaching position for her, the teacher will have a decision to make. If she really cannot teach in person, she will either have to take a leave or resign. Alternatively, she may reconsider her situation and decide that she is in fact able to teach in person. If so, Legal Mailbag hopes and expects that the school district will be able to provide reasonable accommodations, if any are necessary, to permit her to do her job, which includes teaching in person.