R1510 AMERICANS WITH DISABILITIES ACT
The Board of Education will comply with the requirements of the Americans with Disabilities Act of 1990, including changes made by the ADA Amendments Act of 2008 (hereafter referred to as the “Act.”
- “Act” means the Americans with Disabilities Act of 1990, as amended by the ADA Amendments Act of 2008.
- “Auxiliary aids and services” are identified based on the context of the communication and the individual’s disability. 28 CFR §35.104.
They include, but are not limited to:
- Effective methods of making aurally delivered information available to individuals who are deaf or hard of hearing;
- Effective methods of making visually delivered materials available to individuals who are blind or have low vision;
- Acquisition or modification of equipment or devices or similar services and actions; and
- Other similar services and actions.
- “Board” means the Board of Education of this school district.
- “Companion” means a family member, friend, or associate of an individual seeking access to a service, program, or activity of a school district, who, along with such individual, is an appropriate person with whom the district should communicate.
- “Complete complaint” means a written statement, signed by the complainant or someone authorized to do so on his/her behalf, containing the complainant’s name and address and describing the public entity’s alleged discriminatory action in sufficient detail to inform the agency of the nature of date of the alleged violation. 28 CFR §35.104
- “Current illegal use of drugs” means illegal use of drugs that occurred recently enough to justify a reasonable belief that a person’s drug use is current or that continuing use is a real and ongoing problem.
- “Direct threat” means a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures, or by the provision of auxiliary aids or services. 28 CFR §35.139
- “Disability” means, with respect to an individual, that the individual meets one or more of the following three prongs:
- A physical or mental impairment that substantially limits one or more of the major life activities of such individual;
- A record of such an impairment; or
- Being regarded as having such an impairment.
- “District” means this school district.
- “District Coordinator” means the district official responsible for the coordination of activities relating to compliance with the Act.
- “Drug” means a controlled substance, as defined in schedules I through V of Section 202 of the Controlled Substances Act. 21 U.S.C. §812
- “Employee” means an individual employed by the Board.
- “Essential functions of the employment position” are based upon the employer’s judgment and can include an employer’s written description, prepared before advertising or interviewing applicants for the job.
- “Existing facility” means a facility in existence on any given date, newly constructed or altered.
- “Facility” means all or any portion of buildings, property, or structures, including the site where the building, property, structure, or equipment is located.
- “Illegal use of drugs” means the use of one or more drugs, the possession or distribution of which is unlawful under the Controlled Substances Act. 21 U.S.C. §812
- “Individual with a disability” means a person who has a disability and does not include an individual currently engaging in the illegal use of drugs, when the district acts on the basis of such use.
- “Major life activities” means those of central importance to daily life and include, but are not limited to, functions such as: caring for one’s self, performing manual tasks, walking, seeing, hearing, eating, sitting, reaching, writing, standing, lifting, sleeping, bending, speaking, breathing, reading, concentrating, thinking, communicating, interacting with others, learning, and working. “Major life activities” also includes physical or mental impairments that substantially limit the operation of a major bodily function, including, but not limited to: functions of the immune system, special sense organs and skin, normal cell growth, and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, reproductive systems, and the operation of an individual organ within a body system. 28 CFR §35.108; 28 CFR §36.105
- “Mitigating measures” means steps taken to eliminate or reduce the symptoms or impact of an impairment. “Mitigating measures” include, but are not limited to: medication; medical equipment/appliances; mobility devices; low vision devices (not including ordinary eyeglasses or contact lenses); prosthetics (including limbs and devices); hearing aids, cochlear implants, or other implantable hearing devices; oxygen therapy equipment and supplies; the use of assistive technology; reasonable modifications or auxiliary aids or services; learned behavioral or adaptive neurological modifications; and psychotherapy, behavioral, or physical therapies. 42 U.S.C. 126 §12102
- Mitigating measures, must not be used when determining whether an impairment is a disability except for the use of corrective eyeglasses or contact lenses. Mitigating measures may be considered in assessing whether someone is entitled to reasonable accommodation or poses a direct threat.
- “Office for Civil Rights” (OCR) means the United States Department of Education Office for Civil Rights.
- “Other power-driven mobility device” means any mobility device powered by batteries, fuel, or other engines used by individuals with mobility disabilities for the purpose of locomotion, including any mobility device designed to operate in areas without defined pedestrian routes, but that is not a wheelchair. 28 CFR §35.104
- “Physical or mental impairment” means any physiological disorder or condition such as, cosmetic disfigurement or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular, reproductive, digestive, genitourinary, immune, circulatory, hemic and lymphatic, skin, and endocrine; or any mental or psychological disorder such as intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 28 CFR §35.108(b)(2) and 28 CFR §36.105(b)(4)
- Physical or mental impairments may include, but are not limited to: contagious and noncontagious diseases and conditions; orthopedic, visual, speech, and hearing impairments; cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, intellectual disability, emotional illness, dyslexia and other specific learning disabilities, Attention Deficit Hyperactivity Disorder (ADHD), Human Immunodeficiency Virus (HIV) (weather symptomatic or asymptomatic), tuberculosis, drug addiction, and alcoholism.
- Physical or mental impairments do not include: transvestism; transsexualism; homosexuality or bisexuality; gender identity disorders; sexual behavior disorders; pedophilia; exhibitionism; environmental, cultural, and economic disadvantages; pregnancy; physical characteristics; personality traits or behaviors; normal deviations in height, weight, or strength; compulsive gambling; kleptomania; phyromania; and psychoactive substance use disorders resulting from current illegal use of drugs.
- An impairment that is episodic or in remission may be considered a “disability” if it would substantially limit a major life activity when active.
- Not all impairments are disabilities.
- “Public entity” means this Board of Education.
- “Qualified individual” for the purposes of employment, means an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position (based upon the employer’s judgment) that such individual holds or desires. An employer’s written description, prepared before advertising or interviewing applicants for the job, shall be considered evidence of the essential functions of the job. 42 U.S.C. 126 §12111(8)
- “Reasonable accommodation” may include making existing facilities used by employees readily assessable to and usable by individuals with disabilities and job restructuring, part-time modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
- “Record of such an impairment” means the individual has a history of, or has been misclassified as having a mental or physical impairment that substantially limits one or more major life activities.
- “Regarded as having an impairment” means the individual establishes that he or she has been subjected to a prohibited action under the Act because of an actual or perceived physical or mental impairment, whether or not that impairment substantially limits or is perceived to substantially limit a major life activity.
- For this prong only, the public entity must demonstrate the impairment is or would be both transitory (lasting or expected to last six months or less) and minor to show an individual is not regarded as having such an impairment. 42 U.S.C. 126 §12102 (3)(B)
- A public entity is not required to provide a reasonable modification to an individual meeting the definition of “disability” solely under the “regarded as” prong.
- “Substantially limits” means the extent to which the impairment limits an individual’s ability to perform a major life activity as compared to most people in the general population, whether or not an individual chooses to forgo mitigating measures. 42 U.S.C. 126 §12102(4); 28 CFR §35.108(d); 28 CFR §35.105(d) The rules of construction when determining whether an impairment substantially limits performance of a major life activity include:
- That it is broadly construed in favor of expansive coverage, to the maximum extent permitted under the Act.
- That it does not demand extensive analysis.
- That it substantially limits one major life activity, but not necessarily other major life activities.
- That is may be episodic or in remission, as long as the impairment would substantially limit a major life activity when active.
- That it need not prevent, or significantly or severely restrict, an individual from performing a major life activity.
- That it requires an individualized assessment which does not create an “inappropriately high level of limitation” and is based upon the conditions, manner, or duration under which the individual can perform the major life activity 42 U.S.C. 12102(4)(B)
- That it generally will not require scientific, medical, or statistical evidence (although such evidence can be required where appropriate evidence that can be considered may include statements or affidavits of affected individuals and school records).
- That the determination is made without regard to ameliorative effects of mitigating measures, except for the use of ordinary eyeglasses or contact lenses intended to fully correct visual acuity or eliminate refractive error. Non-ameliorative effects, such as the negative side effects of medication or a medical procedure, may also be considered.
- That the effects of an impairment lasting or expected to last less than six months can be substantially limiting for establishing a disability under the first two prongs: “actual disability” or “record of”.
- “Undue hardship” means an action requiring significant difficulty or expense when considered in light of factors which include: the nature and cost of the needed accommodation; the overall financial resources of the district or facility providing the reasonable accommodation; the size of the district with respect to the number of employees; effect on expenses and resources, or the impact otherwise of accommodation upon the operation of the facilities; and the type/location of facilities.
- “Wheelchair” means a manually operated or power-driven device designed primarily for use by an individual with a mobility disability.
- General Requirements
- Prohibitions Against Discrimination
- Discrimination is prohibited against a qualified individual on the basis of a disability. Such individual will not be excluded from participation in or denied the benefits of district services, programs, or activities or be subjected to discrimination by the district in accordance with 28 CFR §35.130. The district must ensure that:
(1) When services, programs, and activities are viewed in their entirety, they are accessible to and usable by individuals with disabilities; and
(2) Access to services, programs, and activities is provided in an integrated setting unless separate programs are necessary to ensure equal benefits.
- The district is not required to take any action that would result in a fundamental alteration of the nature of the program or activity or undue financial or administrative burden. However, claiming undue burden still requires the district to provide access through means that would not result in a fundamental alteration or undue financial or administrative burden.
- Direct Threat – 28 CFR §35.159
- The district is not required to permit an individual to participate in or benefit from the district’s services, programs, or activities when that individual poses a direct threat to the health or safety of others.
- To determine whether an individual poses a direct threat to the health or safety of others, the district must make an individualized assessment, based on reasonable judgment that relies on current medical knowledge or on the best available objective evidence to ascertain:
(1) The nature, duration, and severity of the risk;
(2) The probability that the potential injury will actually occur; and
(3) Whether reasonable modifications of policies, practices, or procedures or the provision of auxiliary aids or services will mitigate the risk.
- Illegal Use of Drugs – 28 – CFR §35.131
- The district will not discriminate on the basis of past illegal use of drugs against an individual who is not engaging in current illegal use of drugs and who:
(1) Has successfully completed a supervised drug rehabilitation program or has otherwise been rehabilitated successfully;
(2) Is participating in a supervised rehabilitation program; or
(3) Is erroneously regarded as engaging in such use.
- While the Act does not prohibit discrimination against an individual based on that individual’s current illegal use of drugs, the district will not deny health services or services provided in connection with drug rehabilitation to an individual on the basis of that individual’s current illegal use of drugs, if the individual is otherwise entitled to such services.
- The Act does not prohibit the district from adopting or administering reasonable policies or procedures, including but not limited to drug testing, designed to ensure that an individual who formerly engaged in the illegal use of drugs is not now engaging in current illegal use of drugs.
- Personal Devices and Services
- The district will permit individuals with mobility disabilities to use wheelchairs and manually powered mobility aids such as walkers, crutches, canes, braces, or other similar devices designed for use by individuals with mobility disabilities in any areas open to pedestrian use. 28 CFR §35.137
- The district will make reasonable modifications to permit the use of other power-driven mobility devices by individuals with mobility disabilities unless the district can demonstrate that the power-driven device cannot be ope4rated in accordance with legitimate safety requirements pursuant to 28 CFR §35.137. The district will not ask an individual using a wheelchair or other power-driven mobility device questions about the nature and extent of the individual’s disability. The district may require the individual to provide credible assurance that the device is required because of the person’s disability.
- The district is not required to provide individuals with disabilities personal devices such as wheelchairs; individually prescribed devices such as prescription eyeglasses or hearing aids, readers for personal use or study; or services of a personal nature including assistance in eating, toileting, or dressing pursuant to 28 CFR §35.135.
- Employment – 42 U.S.C. 126 §12112
- Discrimination in Employment
- The Board will not discriminate against a qualified individual on the basis of disability in regard to job application procedures; hiring, advancement, or discharge; compensation; job training; and other terms, conditions, and privileges of employment.
- Applicants and employees working for or applying to work for the district who qualify for a job and are able to perform the essential functions of that job re entitled to reasonable accommodations provided that such accommodations do not pose undue hardship for the district.
- Nothing in the Act shall be construed to preempt, modify, or amend any State, county, or local law, ordinance, or regulation as outlined in N.J.A.C. 6A:32-4.1 et seq.
- The school district may not, on the basis of disability:
(1) Limit, segregate, or classify a qualified individual in a way that adversely affects his/her opportunities or status of such employee, applicant, or participant in a contractual or other arrangement;
(2) Utilize standard, criteria, or methods of administration that have the effect of discrimination on the basis of disability or perpetuate the discrimination of others subject to common administrative control;
(3) Exclude or otherwise deny equal jobs or benefits to qualified individual because of the known disability of an individual with whom the qualified individual is known to associate or have a relationship;
(4) Fail to make reasonable accommodations to known physical or mental limitations of an otherwise qualified individual with a disability or deny employment opportunities to such qualified individual unless the district can demonstrate that the accommodation would impose undue hardship to district operations;
(5) Use qualification standards, employment tests, or other selection criteria that screen out or tend to screen out individuals with disabilities unless the standard, test, or other selection criteria, as used by the district, is shown to be job-related for the position in question and consistent with business necessity; and/or
(6) Select and administer tests concerning employment to otherwise qualified individuals who possess impaired sensory, manual, or speaking skills, unless done in an effective manner to ensure that, when such tests are administered to a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, the test results accurately reflect the skills, aptitude, or other factors such tests purport to measure rather than reflecting the impaired sensory, manual, or speaking skills of the employee or applicant (except where such skills are the factors that the test purports to measure).
- Medical Examinations and Inquiries – (42 U.S.C. 126 §12112)
(1) Prohibited examination or inquiries:
(a) Whether such an applicant is an individual with a disability; or
(b) The nature or severity of such disability.
(2) Acceptable inquiry:
(a) The ability of an applicant to perform job-related functions.
- Employment Entrance Examinations
(1) The district may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties and may condition an offer of employment on the results of such examination, if:
(a) All entering employees are subject to such an examination regardless of disability;
(b) Information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that:
- Supervisors and managers may be informed regarding necessary restrictions on work or duties of the employees and necessary accommodations;
- First aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
iii. Government officials investigating compliance with this Act, will be provided relevant information on request.
(2) The results of such examination shall only be used in accordance with these provisions.
- Examination and Inquiry:
(1) Prohibited examinations and inquiries:
(a) The district will not require a medical examination and will not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.
(2) Acceptable examinations and inquiries:
(a) The district may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees in the district.
(b) The district may make inquiries into the ability of an employee to perform job-related functions.
- Defenses – 42 U.S.C. 126 §12113
- Qualification Standards
(1) It may be a defense to a charge of discrimination under the Act that an alleged application of qualification standards, tests, or selection criteria that screen out, tend to screen out, or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under the Act.
(a) The term “qualification standards” may include a requirement that an individual will not pose a direct threat to the health or safety of other individuals in the workplace.
(b) Notwithstanding 42 U.S.C. 126 §12102(4(E)(ii), the Board will not use qualification standards, employment tests, or other selection criteria based on an individual’s uncorrected vision unless the standard, test, or other selection criteria, as used by the covered entity, is shown to be job-related for the position in question and consistent with business necessity.
- Infectious and Communicable Diseases
(1) In any case in which an individual has an infectious or communicable disease included on the list developed by the United States Secretary of Health and Human Services in accordance with the Act, and which cannot be eliminated by reasonable accommodation, and that is transmitted to others through the handling of food, the Board and its administration may refuse to assign or allow such individual to continue to work in a job involving food handling.
- Illegal Use of Drugs and Alcohol – 42 U.S.C.
(1) An individual with a disability shall not include any employee or applicant who is currently engaging in the illegal use of drugs, with exceptions noted in section B.3. of this Regulation.
(2) The Board will hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior as other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee.
- Drug Testing
(1) For the purposes of the Act, a test to determine the illegal use of drugs will not be considered a medical examination.
(2) No provision of the Act shall be construed to encourage, prohibit, or authorize the conducting of drug testing for the illegal use of drugs by job applicants or employees or making employment decisions based on such test results.
- Program Accessibility
- Discrimination Prohibited
- Except as otherwise provided in 28 CFR §35.150, no qualified individual with a disability will, because the district’s facilities are inaccessible to or unusable by individuals with disabilities, including inside or outside access to such facilities, may be excluded from participation in, or be denied the benefits of the services, programs, or activities of the district, or be subjected to discrimination by the district.
- The district will maintain facilities and equipment required by the Act to be readily accessible to and usable by individuals with disabilities. This provision does not prohibit isolated or temporary interruptions in service or access due to maintenance or repairs. 28 CFR §35.133
(1) In regard to existing facilities, the district will operate each service, program, or activity so that the service, program, or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities.
(a) The district is not required to fundamentally alter the nature of a service, program, or activity, or assume undue financial or administrative burdens, or take any action threatening the historic significance of a historic property and has the burden of providing that compliance with the Act would result in such alterations or burdens. 28 CFR §35.150(a)
(b) Should the Board and Superintendent of Schools or his/her designee determine, after considering all resources available, that compliance would result in such alteration or burden, a written statement of reasons must accompany such a determination.
(c) The Board will take any other action, including, but not limited to redesign or acquisition of equipment, or reassignment of services or staff, that would not result in such alteration or burden, but would, nevertheless, ensure that individuals with disabilities receive the benefits/services provided by the district.
(2) In regard to new construction and alterations, each facility or part of a facility constructed by, on behalf of, or for the use of the district will be designed and constructed in such manner, in accordance with 28 CFR §35.151, that the facility or part of the facility is readily accessible to and usable by individuals with disabilities.
(a) Full compliance with the requirements of 28 CFR §35.151 is not required where the district can demonstrate that it is structurally impracticable to meet the requirements.
(b) If providing accessibility in conformance with 28 CFR §35.151 to individuals with certain disabilities (e.g., those who use wheelchairs) would be structurally impracticable, accessibility shall nonetheless able ensured to persons with other types of disabilities, (e.g., those who use crutches or who have sight, hearing, or mental impairments) in accordance with 28 CFR §35.151.
- Communications – 28 CFR §35.160
- The district will take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.
- The district will furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in and enjoy the benefits of a service, program, or activity conducted by the district.
- Auxiliary aids and services will be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.
- The district will not require an individual with a disability to bring another individual to interpret with a disability. The district will not rely on an adult accompanying an individual with a disability or on a minor child to interpret or facilitate communication, except in an emergency involving an imminent threat to the safety or welfare of an individual or the public where there is no interpreter available; or where the individual with a disability specifically requests that the accompanying adult interprets or facilitates communication, the accompanying adult agrees to provide such assistance, and reliance on that adult is appropriate under the circumstances.
- Where the district communicates by telephone with applicants and beneficiaries who are deaf, hard of hearing, or who have speech impairments, text telephones (TTYs) or equally effective telecommunications systems equipped with emergency service access will be used to communicate, in the same time and manner as with other telephone systems (including automated systems). 28 CFR §35.161
- The district will ensure that interested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, activities, and facilities, including signage at all inaccessible facility entrances. 28 CFR §35.163
- Grievance Procedure – 28 CFR §35.107(b)
- A complainant who believes that he/she has been harmed or adversely affected by a discriminatory practice or act prohibited by law and/or policy shall first discuss the matter with his/her immediate supervisor in an attempt to resolve the matter informally.
- If the matter is not resolved to the satisfaction of the complainant within thirty working days, the complainant may submit a written complaint to the District Coordinator. The complaint will include:
- The complainant’s name and address;
- The specific act or practice of which the complainant complains;
- The employee, if any, responsible for the allegedly discriminatory act;
- Results of discussions conducted in accordance with paragraph G.1 above; and
- Reasons why those results are not satisfactory.
- The District Coordinator will investigate the matter informally and will respond to the complainant in writing no later than seven working days after receipt of the written complaint. A copy of the complaint and the response will be forwarded to the Superintendent.
- The response of the District Coordinator may be appealed to the Superintendent in writing within three working days after it has been received by the complainant. The appeal will include the original complaint, the response to the complaint, and the complainant’s reason for rejecting the response. A copy of the appeal must be given to the staff member alleged to have acted discriminatorily.
- On his/her timely request (that is, submitted before the expiration of the time within which the Superintendent must render a decision), the complainant will be given an informal hearing before the Superintendent, at a time and place convenient to the parties, but no later than seven working days after the request for a hearing has been submitted. The Superintendent may also require at the hearing the presence of the staff member charged with a discriminatory act and any other person with knowledge of the complained act.
- The Superintendent will render a written decision in the matter no later than seven working days after the appeal was filed or the hearing was held, whichever occurred later. Copies of the decision will be given to all parties.
- The complainant may appeal the Superintendent’s decision to the Board by filing a written appeal with the School Business Administrator/Board Secretary no later than three working days after receipt of the Superintendent’s decision. The appeal shall include:
- The original complaint;
- The response to the complaint;
- The Superintendent’s decision;
- A transcript of the hearing, if one has been made, or a summary of the hearing to which all parties have consented; and
- The complainant’s reason for believing the Superintendent’s decision should be changed.
- If a staff member is charged with a discriminatory act, the Board will provide a copy of the appeal to that staff member.
- The Board will review all papers submitted and may render a decision on the basis of the proceedings below. If the complainant so requests, the Board may convene a hearing, at which all parties may be represented by counsel and may present and examine witnesses, who will testify under oath.
- The Board will render a written decision no later than forty-five calendar days after the appeal was filed or the hearing held, whichever occurred later. Copies of the decision will be given to all parties.
- The complainant will be informed of his/her right to appeal the Board’s decision to the:
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Civil Rights Division
Disability Rights Section – 1425 NYAV
Washington, D.C. 20530
- An individual who believes he or she or a specific class of individuals has been subjected to discrimination on the basis of disability by the district may, by himself/herself, or an authorized representative, at any time, file a complaint directly with OCR.
- The record of any complaint processed in accordance with this procedure will be maintained in a file kept by the District Coordinator.
- A copy of the decision rendered at the highest level of appeal will be kept in the employee’s personnel file.
Adopted: February 2017