Rights of Employees with Disabilities

Accommodations and Privacy of Medical Records

Faculty and staff with illnesses, injuries, conditions, or other impairments that constitute a disability have important rights, protected by law.  

Contents:

Rights to accommodations

Accommodation procedures

Relationship of a disability to general expectations for performance and conduct

Privacy rights; medical records

Concerns that employee cannot perform job or poses a threat to health or safety

For information about what consitutes a disability, visit the main disability rights guidance page.  

Employees - whether faculty or staff - with disabilities have rights to accommodations.  There are some limitations on these rights.  
  • W&M makes modifications and adjustments to jobs and job conditions to help employees with disabilities perform the job duties.  These modifications and adjustments are usually called “reasonable accommodations”.   We also make accommodations to help a person with a disability enjoy the benefits and privileges of employment.   For example, we provide accommodations so that employees can participate in training (such as by providing sign language interpreters), access services generally available to employees, and participate in or attend official university functions and events.  
  • The appropriate accommodation is determined on a case-by-case basis, in an interactive process between the employee and W&M.  An accommodation only works if it allows the employee to perform the essential functions of a job.  Examples of accommodations include
    • Providing technical aids and devices, such as special computer keyboards or telephones.  In many cases, equipment or devices are considered personal need items, such as wheelchair or walker, and William & Mary is not required to provide these; however, if the need for the equipment is a work, not personal need, then it may be William & Mary’s responsibility. 
    • Modifying the workplace, such as through retrofitted entryways or special office furniture.  William & Mary generally is not required to modify existing worksites to make them accessible until a particular employee needs an accommodation. 
    • Modifying duties or hours of work, such as permitting telework, an alternate work schedule to allow for medical appointments, shifting minor duties to other employees, or allowing more frequent rest breaks.
    • Allowing service animals.   
    • Reassigning the employee to a vacant position for which he or she is minimally qualified and capable of performing the essential functions, with or without accommodation.   Reassignment is designed to move an employee to an equivalent position only if other accommodation efforts are unsuccesful. Reassignment is not not competitive - the employee is not required to be the most qualified person for the position.  The reassignment right does not include promotions; an employee is required to compete for a reassignment that would be position.  If an equivalent position is not available, a reassignment to a position that would constitute a demotion may be considered. Reassignment is often difficult at William & Mary, which has a limited number of vacant positions at any point in time.  For faculty, reassignment often is not a viable option given the specialized qualifications of research and instructional positions.  
Accommodation requests are processed under under the Employee Reasonable Accommodation Policy and Procedure or, for disability leave, the applicable leave policy.  These policies and procedures are designed to ensure that employees' legal rights are respected, and these procedures must be followed.  
  • Only the Office of Diversity & Inclusion can authorize an accommodation.  The only exception is disability leave, which may be authorized by the Office of Human Resources or, for faculty, the Provost's Office.  Supervisors may not come up with accommodations on their own.  The Office of Diversity & Inclusion authorizes accommodations under the Employee Reasonable Accommodation Policy and Procedure.  Faculty or staff should contact the Office with accommodation requests.  
  • Employees don't need to use the particular words "accommodation."  If any employee indicates the need for some change in working conditions or job duties in relation to a medical condition the employee has, that must be treated as a request for accommodation.  For example,
    • if an employee tells his supervisor that he is having trouble working a full work day because of medical treatments he is undergoing, the supervisor needs to treat this as a request for accommodation and contact Diversity & Inclusion.  
    • if a supervisor knows that an employee has a disease (for example) affecting the employee's ability to do her job, and that employee requests some adjustment in job duties, if a reasonable person would recognize that the request related to the disability, the supervisor must treat it as such as contact Diversity & Inclusion.
    • if a faculty member develops a condition that impairs his or her mobility, he or she should contact Diversity & Inclusion to help ensure that any physical barriers are eliminated.   
Employees with disabilities need to comply with general policies on performance and conduct. 
  • Faculty and staff with disabilities are subject to the same performance and conduct expectation as all other employees.  But sometimes expectations as to how an employee performs his job – not how well, but the manner in which he or she gets the work done – will change in the accommodation process. And a request for reasonable accommodation of a disability constitutes protected activity, and therefore retaliation for such requests is unlawful.  (Read more about retaliation on the disability guidance website.)
  • If an employee reveals a disability after performance or conduct problems arise, W&M will work with the employee through the accommodation process, but we are not required to rescind or change past performance evaluations or disciplinary measures.  
Employees have privacy rights regarding their disability, any accommodations, and their medical records. 
  • Asking an employee if she has a particular medical condition (a disabiity) or asking her to take a medical examination or to provide documentation from a health care provider may violate the employee's rights.  There are some circumstances under which it is appropriate to ask for this information:
    • If an employee has requested an accommodation, the Office of Diversity & Inclusion can work with the supervisor and the employee to collect appropriate medical records relating to the disability and the need for accommodation.  
    • If a supervisor has a reasonable belief that an employee's ability to perform essential job functions will be impaired by a medical condition or that he will pose a direct threat due to a medical condition, W&M can make disability-related inquiries or require a medical examination.  
    • To verify use of sick/disability leave, if such information is required as matter of course to verify such leave.  
  • A supervisor cannot reveal to others that an employee has a disability or that she has received accommodations.  The supervisor needs to respect the employee's privacy.  Even if other employees are wondering about an accommodation, the supervisor needs to focus on the importance of privacy and of not discussing one employee's work situation with another employee.  
If a supervisor, co-worker, or manager is concerned about an employee's ability to do his job because of his disability, Diversity & Inclusion must be contacted.  Similarly, if there is concern about a safety or health risk posed by the employee's disability, Diversity & Inclusion must be contacted.
  • Employees must be capable of performing the essential functions of their jobs, but deciding that employee is not capable requires a review by Diversity & Inclusion to ensure that any accommodations are considered and that the essential functions of the job are appropriately identified.  Diversity & Inclusion will consult with other offices as appropriate and ensure that employee rights are respected.  (Note that faculty have special rights, under the Faculty Handbook.)
  • An employee who poses a "direct threat" to himself or others is not qualified for the position.  The existence of a direct threat must be based on objective evidence and reviewed by Diversity & Inclusion and Human Resources.  A supervisor cannot decide on his or her own that an employee poses a direct threat.  Direct threat as used in this context is different than an actual threat (such as "I'm going to kill you"); the Policy on Campus Violence and Threat Management specifies how such threats are handled.  

Updated September 2016