A Categorical No to Categorical Accommodation Denials Related to COVID-19?
By Katherine Macfarlane and Irina Manta
Since fall 2021, when most colleges and universities reopened their campuses to in-person activities, it has become increasingly difficult for faculty and students with disabilities to obtain reasonable accommodations to teach or attend class remotely. Remote accommodations were granted freely during the first year of the COVID-19 pandemic, but in 2021, the in-person aspect of teaching and learning was suddenly deemed essential, and at many institutions, remote classes came to an end. Despite federal disability law’s requirement that each reasonable accommodation request be assessed individually, faculty and students alike were met with bright-line policies that remote teaching and learning were out of the question.
The language and logic used to deny these accommodations at universities across the country was suspiciously similar. We wondered to ourselves whether a memo had been circulated instructing universities about which magic words to employ to deny each accommodation request. But no matter what words are used, across-the-board policies that do not contemplate accommodation-based exceptions and fail to assess accommodation requests on an individual basis do not comply with federal disability law. A recent federal case brought by a high-risk professor against his university employer has recognized these well-settled principles and highlighted the problem with formulaic denials.
The chain of events leading to the reasonable accommodation denial in Oross v. Kutztown University are not unusual: a high-risk employee sought an accommodation to work remotely as a result of medically-documented disabilities. Stephen Oross, a tenured member of the Kutztown University psychology department, suffered a heart attack and underwent double bypass surgery in 2014, returning to full-time teaching a year later. After his condition worsened in early 2021, he received a heart transplant. To prevent his body from rejecting his new heart, Oross was prescribed high doses of immunosuppressant medication. That same medication rendered him high-risk for severe illness or death from COVID-19.
In March 2020, all Pennsylvania institutions of higher education discontinued their in-person instruction. At Kutztown University, located in Kutztown, PA, over 1,700 classes were converted from in-person to online. During the 2020-2021 academic year, over 200 faculty members were given a flexible work arrangement permitting them to teach remotely. As a result of such an arrangement, in fall 2020, Oross taught, held office hours, and completed his service online. In March 2021, the university announced plans to reopen to in-person activities in the fall. Classes held in-person before the pandemic would all return to being offered in person. Office hours were to be conducted in person unless students agreed to conduct them remotely.
Though presented as a return to pre-pandemic business as usual, these conditions impose novel restrictions on faculty. Before the pandemic, at many universities, it was not unusual for professors to hold make-up classes online. In our experience, professors had discretion to schedule their office hours how and when they wanted to, without needing student permission. Kutztown University, like other institutions of higher education around the country, was going even further than the 2019 version of normal. Giving students a veto over a vulnerable professor’s decision to protect their health is a departure from standard practices, which respect a professor’s autonomy.
With respect to Professor Oross, the university’s approach meant that even though he remained severely immunocompromised, he was assigned to teach four in-person classes. Oross requested an accommodation that would permit him to teach and hold office hours remotely, a request supported by his physicians. His request was denied. Deposition testimony revealed that university staff had developed form language used to deny all remote teaching requests by Kutztown University faculty. Across the board, remote teaching accommodation requests would be treated as requests to fundamentally alter the university’s courses and would be denied on that basis.
In a rare scenario for any plaintiff, let alone a civil rights plaintiff with disabilities, the Eastern District of Pennsylvania granted summary judgment in Oross’s favor as to his Rehabilitation Act claims for intentional disability discrimination and failure to accommodate. This means that the court dispensed with a jury trial. It deemed Oross’s claims to be so strong that the judge could decide the case in Oross’s favor by himself because no reasonable jury would find otherwise.
First, in addressing whether teaching and holding office hours in-person were an essential part of Oross’s job that was not subject to accommodation, the court noted that no job description or course description stated as much. The court also focused on how the university marketed its distance education options as a “‘critical component to the University’s mission to lead itself into the future.’” The court highlighted that prior to the pandemic, a small number of classes already were offered online, and that during the first year of the pandemic, over two-thirds were. During fall 2021, when Oross’s accommodation was denied, 15% of the university’s course offerings were online. Oross himself had extensive online teaching experience.
According to the court, the considerable number of online courses offered by the university and previously taught by Oross contradicted the university’s claims that in-person teaching was an essential aspect of his work. Nor did the university submit any evidence that online teaching lessened instructional quality. The court also rejected any consideration of student preferences for in-person classes, which “do not qualify as an undue burden” under the Rehabilitation Act that would excuse the university from providing Oross with an accommodation permitting him to teach remotely. In-person teaching and in-person office hours were not essential functions of Oross’s job.
Second, though the Rehabilitation Act, like the ADA, requires each accommodation request to be assessed individually, the court found that there was no evidence that anyone at the university “ever considered [Oross’s] particular and serious individual circumstances before denying him his request to teach and conduct office hours remotely for the Fall Semester of 2021.” No consideration was given to his recent heart transplant or his physicians’ concern that he was high-risk for serious illness or death from COVID-19. Rather, the university denied the request based on its “recently devised mantra that any accommodation request that would change the modality for a scheduled class would fundamentally alter the course and therefore place an undue burden on the University.” This suggests that going forward, plaintiffs bringing failure to accommodate claims in this context should seek discovery regarding the existence of any categorical instructions about how to deny a remote teaching request.
The court found it significant that Oross’s request was limited to one semester and that he had asked for no changes to course requirements, materials, or learning objectives. However, neither the ADA nor the Rehabilitation Act require accommodations to have an end date. An accommodation that lasts a year or longer may too be reasonable. The court also referenced the lack of compassion shown a “valued tenured professor who, despite having recently under[gone] a heart transplant . . . was trying with ‘all his might to return to campus.’” Professor Oross was an ideal plaintiff in some respects, but untenured and undervalued faculty who undergo less serious procedures or have other disabilities are also entitled to accommodation.
In any case, the Oross decision represents a victory for individualized assessment, and a rejection of categorical bans on COVID-19 accommodations. Universities should heed the case’s warning and halt any pro forma denials.
Katherine Macfarlane is an Associate Professor of Law and Director of the Disability Law and Policy Program at Syracuse University College of Law. @KatAMacfarlane
Irina D. Manta is a Professor of Law and the Founding Director of the Center for Intellectual Property Law (CIPL), Maurice A. Deane School of Law at Hofstra University. @irina_manta
