Friday, December 16, 2011

ADA: Accommodation of Work; Not Accommodation of Qualifications to Work

If a disability has delayed an individual's ability to obtain needed certification to work as a teacher, does the employer have a duty to accommodate the employee to allow him to obtain the certification?  The Nintch Circuit Court of Appeals Court has ruled "No."  

[Johnson v. Board of Trustees (9th Cir. 12-08-11) 2011 DJDAR 17670.]

The teacher in question, Johnson, suffered from major depressive disorder, bipolar.  She had five years to obtain renewal of her teacher certifcation by taking required classes.  She had to complete 6 semester hours of classwork to qualify.  She sought a provisional certificate from the School Board just before the five year period elapsed. 

Johnson and the School District agreed that Johnson had the ability to teach at the time of her application for provisional certification.  Johnson claimed her disability prevented her from getting the certification on schedule, and so the District had a duty of accommodating her by a provisional certification that would allow her more time to obtain full certification.  The District claimed it had not duty to accommodate her efforts to complete the classes because she had delayed unnecessarily over five years without requesting an extension of time.  The District did not renew Johnson's contract because, it claimed, she had failed in a duty of the contract:  to maintain her full certification. 

Looking to the Code of Federal Regulations, the Court found no requirement to accommodate the "job pre-requiste" process.  The accommodation duty was only applicable to work the employee was qualified to perform.  The obtaining of the qualifications, such as passing examinations for licensure, are not within the duty to accommodate. 

This decision is not appliable to the California Fair Employment and Housing Act, but may be a source of guidance and argument for a court taking a conservative view of the accommodation duty.  However, Calfornia diability accommodation law has generally followed more expansive and liberal employee protections than federal ADA law and federal courts interpreting the ADA.  

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