Originally appeared in the CAS Weekly Newsletter.
Written by attorney Thomas B. Mooney.
Dear Legal Mailbag:
As the assistant principal in a middle school, I have been responsible for evaluating a number of teachers for several years. In general, it has been fine, though our teacher evaluation plan is nothing to write home about. However, one teacher has been acting weird this year, and I have not been sure what to do.
Specifically, in my classroom observations, I have noticed that the teacher has been somewhat disorganized, and her lesson plans have left a lot to be desired. Frankly, I have wondered if she is doing drugs. After observing her twice, I decided to confront her, and I asked her if she was all right. She quickly responded that she was fine, but she then asked why I was raising the question. Summoning my best bedside manner, I explained that she seemed a little “off, almost like she is taking drugs” when she was teaching.
She surprised me with her response. She became indignant, and said, “Well, you know that I have diabetes!” Then I got indignant in return because anyone knows that diabetes does not affect a teacher’s organizational skills. I told her that I don’t need bogus excuses, and what I do need is for her to pay attention to her teaching responsibilities. We left it that I would observe her again next week, and I warned her that I would be putting her on a plan unless I see a noticeable improvement in her lesson plans and her teaching.
I am pleased with myself for pushing back on her medical excuse because it seems like disability claims are a growth industry. But I would be grateful if Legal Mailbag can assure me that I did the right thing here.
Dear Dr. No:
Reading your letter, Legal Mailbag has a question – where did you go to medical school? Your statement that “anyone knows that diabetes does not affect a teacher’s organizational skills” is a medical conclusion that you are not qualified to make, and you have some work to do to get your supervision of this teacher back on track.
Legal Mailbag can agree with your concern that disability claims are a growth industry; often teachers who are having trouble in the classroom claim that they have a disability that interferes with their ability to do their jobs. But in making such claims, teachers don’t always understand that a disability claim is not the end of the conversation, but rather the beginning. The question is whether a teacher can perform the essential duties of his or her job, with or without reasonable accommodation. Presenting an organized lesson is an essential job function for a teacher, and this teacher has called into question her ability to continue in employment. When a teacher (or other employee) cannot perform the essential duties of the job, he or she is not protected from discipline, including termination. Indeed, “disability as shown by competent medical evidence” is one of the six reasons under the Tenure Act for which a teacher’s contract of employment may be terminated.
Here, you should have continued the conversation with the teacher about her claim of diabetes; and, your impromptu medical conclusion that her problems couldn’t be caused by diabetes was unwarranted and may have violated her rights. When an employee claims to have a disability, you should ask whether the employee is claiming that the disability affects his or her ability to do his or her job. If the employee says it does, then you (with help from Human Resources) should do the following. First, you should decide whether you accept the employee’s claim of disability, and you are free to require medical evidence and, in appropriate cases, even require that the employee submit to an IME (independent medical evaluation) to do so. Once you have determined that the employee does in fact have a disability, you (with help from Human Resources) should engage in what under the Americans with Disabilities Act is called an interactive dialog over how the disability affects the ability of the employee to do his or her job. You should also discuss whether and how the disability can be reasonably accommodated.
Through that discussion, you will decide whether the employee can perform the essential duties of his or her job, with or without reasonable accommodation. If the employee can perform the essential duties, but needs accommodation to do so, such accommodations should be put in place. At that point, you can hold the employee accountable and require that he or she perform the essential job functions, including appropriate lesson planning and delivery of instruction. Legal Mailbag wishes you well in getting your supervision of this teacher back on track.