Under the Americans With Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504), colleges and universities have a general duty to provide reasonable accommodations to employees and students with a qualifying disability. Unlike in the K-12 setting where schools are required to affirmatively address a student’s potential need for accommodations, in higher education, the ADA and Section 504 generally require a student to self-identify his or her disability, request accommodations, and then participate in an interactive process with the institution to determine whether and to what extent accommodations will be provided.

Students with various disabilities (often related to a psychiatric or mental health condition) sometimes request accommodations relating to class attendance policies, test-taking, and course modification only after a significant portion of a semester or term has passed. Oftentimes, the request for accommodation comes when the student has already incurred absences, performed poorly on tests, or otherwise failed to meet the academic expectations of the course.

Students often believe the ADA and Section 504 require the institution to “unwind” or “correct” these attendance and academic issues, as well as make modifications on a prospective basis. However, federal courts have consistently held that neither the ADA, nor Section 504, requires an institution to make retroactive changes to a student’s record. Rather, courts hold that a school’s obligation to provide reasonable accommodations is a prospective duty that starts at the point a student establishes his or her disability and the need for accommodations. See Leschinskey v. Rectors and Visitors of Radford University, 2011 WL 5029813, at *2 (W.D. Va. 2011) (“A request for a reasonable accommodation is forward-looking. It is prospective. An employee is not entitled to a retroactive accommodation.”); see also Kaltenberger v. Ohio College of Podiatric Medicine, 162 F.3d 432, 437 (6th Cir. 1998) (“However, the College was not obligated to provide accommodation until plaintiff had provided a proper diagnosis of ADHD and requested a specific accommodation.”).

One caveat to this general rule is that an employee or student who has not self-identified a disability can nonetheless fall within the protection of the ADA and Section 504 if college and university officials nonetheless “regard” the student as having a disability. In circumstances where officials regard an employee or student as having a disability, and the employee or student in fact has an actual disability, a failure to accommodate the disability could subject the school to liability. For this reason, it is important for managers, faculty, and other employees not to self-diagnose employees and students as having disabilities. Instead, they should advise employees and students of their right to request accommodations through the institution’s interactive process. Likewise, employees and students should be promptly counseled to raise these issues with the institution’s designated staff member(s) who handle accommodations requests.

While school officials may be tempted to provide retroactive accommodations to employees and students with good intentions, providing retroactive accommodations may increase legal risk. For example, if a school provides retroactive accommodations to one employee or student, but not to another, the institution subjects itself to legal claims based on a violation of its practices and/or differential treatment. Further, allowing retroactive accommodations on a consistent basis can undermine the interactive process, including the requirement that employees and students self-identify. For this reason, schools should consider explicitly stating in their disability policies that retroactive accommodations are not available and will not be provided.

What this means for you:

To avoid potential exposure and ensure your institution’s policies and procedures are compliant:

  • Review your institution’s’ accommodations policies and procedures and ensure they not only align with current law, but provide practical guidance to employees and students, as well as the offices handling accommodations requests.
  • Train mangers and faculty members so they are aware of the institution’s process for addressing accommodations requests and know to promptly refer individuals with such requests to the appropriate office or staff member(s).
  • Train managers and faculty to avoid self-diagnosing individuals with a potential disability or taking action that suggests the individual is “regarded” as having a disability (e.g., provide “one-off” accommodations on the basis of a perceived disability outside of the institution’s accommodations process).
  • Avoid “retroactive” accommodations, once a disability has been identified.