Kutztown University denied a recent heart transplant patient request for distance education accommodation, arguing that the “fundamental change in course delivery” is not “reasonable accommodation” under the Americans With Disabilities Act.
The university says it has received three more requests for ADA accommodation from professors to teach online this semester. He did not grant any.
Stephen Oross, associate professor of psychology with the new heart, said Kutztown has adopted an effective “blanket denial” policy regarding accommodation requests, in possible violation of the law. He is considering legal redress against the University of Pennsylvania.
In the meantime, he refinances his house and taps into retirement funds to pay for his medical and other bills. He also hopes that his performance will not be affected due to his obligation to take leave this semester.
âI have no faith in the administration at this point,â Oross said. âI don’t trust them.
Oross, who has taught at Kutztown since 2002, suffered what is commonly referred to as a “widowmaker” heart attack in 2014. He underwent double bypass surgery and survived, but suffered a life-threatening reaction to it. anticoagulant given to her for a subsequent blood clot in her leg.
He eventually returned to work and his heart failed until 2020 when he began to lose consciousness due to decreased heart function. It became evident that Oross would either get a new heart or die. He got his new heart in February and underwent serious cardiac rehabilitation afterward.
This summer, Oross was doing well enough to be allowed to return to work. But his doctors have said teaching in person is out of the question because the immune suppressing drug he takes to prevent his body from rejecting the new organ puts him at high risk of contracting COVID- 19 severe. Immunosuppressants also make the effectiveness of the vaccine uncertain, even with a third injection.
âDue to Dr. Oross’ current immunocompromised condition and increasing rates of COVID-19 infections, I have serious concerns about his return to face-to-face teaching and his close contact with students and teachers. others right now, âShelly Hankins, one of the Oross Doctors at Milton S. Hershey Medical Center at PennState Health, wrote in a letter to the Kutztown Disability Services Office. âI had a long discussion with him about COVID-19 precautions and infection prevention. And on the last date in July, I recommended that she stay in a low-risk teaching environment and work remotely to limit her risk of getting an infection.
Oross casually approached the human resources office at Kutztown about housing, he said, because he thought it was “good news” that he would be allowed to take over the job. education.
Office staff told her to submit a formal ADA request – and that it would be denied.
âI understand your concerns about going back to class in person this fall. Unfortunately, there is nothing for you to convert your in-person classes to an online modality for the fall semester, âJennifer S. Weidman, Director of Human Resources, wrote at Oross in August. âAs you know, the flexible working hours were only for the last school year. You can apply for ADA accommodation, but under ADA accommodation is not considered reasonable if it is a fundamental change so significant that it changes the essential nature of the goods, services, facilities , privileges, advantages or accommodations offered.
Oross understood that Kutztown was looking to revert to what he called ‘pre-pandemic’ modes of operation this fall, and he planned to use Zoom to teach his four upper division courses while his students attended in person. . He imagined he could offer them a relatively âpre-pandemicâ experience, for example by supervising a small group activity from a screen placed in front of the room.
Kutztown’s posture shocked him. Oross applied for official ADA accommodation, despite the seemingly poor outlook. This was denied, without any discussion of how Oross might standardize the classroom experience for his students. His request to hold remote office hours was also denied.
âThe university has a duty to students who have enrolled and expect face-to-face classes to be conducted in this modality unless and until the Commonwealth directs. [of Pennsylvania] authorities to discontinue face-to-face teaching, âthe formal rejection letter reads.
Days before the start of fall classes, Oross said Kutztown offered him two unspecified “high demand” classes to teach online. But when Oross asked about what these classes were and how many students he was going to teach, he got no answer.
Oross is now on sick leave, without pay, after having exhausted the 15 sick days and the two personal days to which he was still entitled this year.
It’s not just faculty members saying Kutztown let them down. Students with health concerns also say they saw their COVID-19-related requests to study online this term turned down. They posted some of their accounts, anonymously, on Instagram. In one case, a student who expressed concern that none of her upper division courses offered virtual options was asked to consider taking a leave of absence or being transferred to an online university. , maybe or maybe not to return to Kutztown after the pandemic.
Matt Santos, spokesperson for the university, said he could not answer any questions about Oross’ case, including the courses he was offered at the last minute, due to laws on employees and medical confidentiality.
âAlthough we try to meet the needs of every member of our university community, our ability to do so is often affected by policies not defined by the university,â he said. “However, we endeavor to meet these requests within the parameters of laws and regulations.”
With that in mind, Santos continued, âwe are committed to our students to provide a face-to-face experience this year. We had four distance education requests this fall via an ADA hosting request. While some of these requests may have been related to COVID-19, ultimately the requests had to meet the standards of ADA laws to be met through this process. The criteria for judging the claims were based on the medical conditions as defined by the ADA. “
Kutztown’s decisions were based on medical documents, the impact of the disability and “whether or not the requested accommodation met the ADA’s definition of ‘reasonable,'” Santos also said via email.
Santos defined reasonable accommodation as “any change to the application or hiring process, the position, the way work is performed or the work environment that allows a person with a disability qualified for the position to perform the essential functions of this job and take advantage of the same job opportunities. Accommodations are further considered reasonable if they do not create “undue hardship, pose a direct threat to the health or safety of others, or constitute a fundamental impairment”.
The fundamental change in the delivery of a course, he said, is not reasonable accommodation under the ADA.
As for the other three faculty members who submitted requests and were denied, beyond Oross, Santos said they were granted leave under the Family and Medical Leave Act, which allows employees to take unpaid leave with continued group health insurance coverage. However, not all of those employees got 100% time off, he said. Employees can also take accumulated sick leave, up to 90 days per calendar year.
Santos said all enhanced benefits related to COVID-19 were removed by the state of Pennsylvania this summer, “and we continue to follow housing grant laws.”
Oross said he “cannot imagine” that changing the format of a course, keeping all other aspects of the course the same, places undue burden or strain on the university.
“I’m not a lawyer, but I think they’ll have a hard time proving that this really meets the definition of a fundamental change,” he said, accusing the university of “enlightening” those who are looking for housing, and the campus community more broadly. . He also accused Kutztown of doing the ‘bare minimum’ when it comes to preventing and mitigating COVID-19, requiring masks but no vaccines or comprehensive testing, and doing little to facilitate social distancing in class.
There is at least a legal gray area as to what constitutes reasonable accommodation under federal disability law, as some institutions have accommodated professors’ distance education requests this semester.
Cornell University, for example, said in August it would not consider any distance education applications this fall, even those “based on the need for disability accommodation.” After the university was criticized on both moral and legal grounds, Cornell softened its stance, saying it was “firmly committed to providing a wide range of one-on-one accommodation as we resume our in-person operations this year. fall”.
Cornell’s individual academic and administrative units may, “at the discretion of the deans and unit heads, choose to provide additional options to faculty and staff in extraordinary circumstances which prevent them from teaching and working in person. this fall, âCornell also said after the backlash. against its own attempt at a blanket ban on distance education. “These options may include a reduction in working hours, a temporary reassignment of teaching duties and / or short or partial distance education.”