UC Berkeley Academic Policy on Disabled Faculty

Many disabled faculty aren’t aware that there is actually a policy on access and accommodations on campus.

First, is the overarching University of California Office of the President Academic Policy Manual 711-0 Reasonable Accommodation for Academic Appointees with Disabilities. This covers disabled faculty at all UC campuses: https://www.ucop.edu/academic-personnel-programs/_files/apm/apm-711.pdf

Second, is the UC Berkeley specific Academic Personnel Office policy on accommodations, Berkeley Accommodation Process for Academic Appointees with Disabilities: https://apo.berkeley.edu/sites/default/files/accommodations_8-19-15.pdf

What is notable about the UC Berkeley version is that there is a $1000 limit on what departments have to pay for reasonable accommodations — after $1000, the burden then shifts to the university. One might argue that $1000 is still a steep amount especially for smaller units, and this may lead to unconscious (or conscious) bias against hiring disabled faculty, this is one of the areas the FCDR noted in the Disability Strategic Plan.

What is also concerning about both versions is that they have language that if in the view of the campus: if there is no feasible accommodation that will enable the academic appointee to perform the essential functions of the position, the University may initiate a medical separation review (see APM – 080, Medical Separation). Chairs should seek guidance from their Deans or other higher- level administrators before discussing this option with an appointee.

FCDR will be working with campus to clarify the conditions under which this might happen and appropriate safeguards for faculty with disabilities.

Prof.. Susan Schweik reminds us that in 2014, she, Mel Chen, and Katherine Sherwood wrote to the administration concerning the medical separation issue:

December 8, 2014

To: Vice Provost Janet Broughton
From: Susan Schweik (Professor of English), Mel Chen (Associate Professor of Gender and Women’s Studies) and Katherine Sherwood (Professor of Art Practice) 

Thank you for your invitation to comment on proposed revisions to the section of the Academic Personnel Manual that involves medical separation. This is an issue of concern for all academic employees, and it is a specific concern for us as disability studies faculty who have had occasion over a number of years to talk with our colleagues about experiences of negotiating issues of disability and illness in our workplace. 

We appreciate the work done to align this policy more clearly with ADA requirements. We applaud, for instance, the addition of “or another vacant position on campus for which the appointee is qualified” (080-0,1). At the same time, the changes raise a number of questions, and we have serious concerns about several revisions, issues that we think deserve more scrutiny and also greater clarification for UC faculty. The opportunity to review the proposed revisions has also allowed us the occasion to mull over a few things that have not been changed in the new version but that we think deserve more consideration.

The ramifications of some changes are unclear. In the new version of the policy, for instance, the Chancellor’s authority to decide medical separation can no longer be re-delegated. We wonder about the effects of this change and the thinking behind it. We wonder, too, about the change, in section 080-0, from “Medical separation will be considered only in cases where a long-term or serious disability occurs that cannot be reasonably accommodated” to “Medical separation will be considered only in cases where a disability or medical condition occurs that cannot be reasonably accommodated.” With the removal of “long-term,” do these changes narrow or broaden the university’s capacity to handle cases of chronic illness or sporadic illness or other complex temporalities of disability? We are unsure, and we request clarification. It is important to ensure that the “reasonable accommodations” mandated by law for “disability” are not put under pressure by efficiency or other management mandates. We wonder about the legal meaning of “medical condition,” which in another document, APM-015 (The Faculty Code of Conduct) is glossed parenthetically on page 5 in the context of prohibition of discrimination with the phrase “cancer-related or genetic characteristics.” In all these cases we think the changes may merit additional explanation of the rationale behind them. 

Other changes give us serious pause. We are very concerned about the fact that in one suggested revision (080-20 Notice of Intent to Separate and Notice of Action, 5), the notice to the appointee of the intention to separate will NO LONGER INCLUDE “copies of the statements of the chair and/or Dean and/or unit head and any other pertinent material considered,” as indicated by the strikeout of such text in the proposed revision. All that would be provided in the new proposed version is the reason for separation and the informing of the right to respond within 30 days. We find this a radically reduced foundation upon which an employee could build an informed and effective response.

We also have concerns about changes in category (c), “Other Academic Appointees”, under the “Notice of Intent to Separate and Notice of Action” (proposed version: 080-20[c]). We object to the removal of the right of such employees to respond in advance of, or to have any effect on, a final decision to separate by the Chancellor. The proposed version removes the ability of “other academic appointees” to respond either orally or in writing within thirty (30) calendar days, and it removes the Chancellor’s consultation of any such response before making a decision to medically separate the employee.

Finally, although they do not involve new changes but rather concern language apparently already in the earlier version, we are taking this opportunity to register our concerns about two moments in this text that were, so to speak, pre-existing conditions. The first involves the use of the phrase “with or without reasonable accommodation” (080-0 Policy, 1). “Without reasonable accommodation” strikes us as potentially in opposition to the stipulations of the Americans with Disabilities Act as we understand it. Isn’t this phrase essentially the same as “regardless of reasonable accommodation”? Wouldn’t it make more sense to say “despite reasonable accommodation” or “despite every effort to reasonably accommodate”? Logically, the phrase seems to say: “it doesn’t matter, this question of accommodation.” It also seems to externalize the decision to an administrator, leaving behind the interactive process that should determine reasonable accommodation.

Second: while the proposed changes in the section on notice do not alter response times (other than the removal of the right of “Other Academic Employees” to respond), we note the extreme difficulty in the present environment for any faculty member (with or without tenure or security of employment) who must request a hearing within only 30 days of receiving a notice of intent to medically separate, given the seriousness of the matter at hand. We find this time period to be impractically short if we understand that the very issue at hand is that of medical difficulty. Not responding within 30 days effectively waives the power of the employee to request a hearing, and it exposes the process to a final determination by the Chancellor within 90 days of the original notice of intent to medically separate (which, without the opportunity to respond to avert, we imagine that the employee might suitably then expect anytime after the first 30 days). 

Thank you again for the opportunity to comment on the developing policy around this important issue.

Prof. Schweik says the Board of Berkeley Faculty Association also wrote to support the Schweik-Chen-Sherwood letter:

“On behalf of members of the Berkeley Faculty Association, we write to encourage the campus to take seriously the questions and concerns raised by Susan Schweik, Mel Chen, and Katherine Sherwood regarding the section of the APM that involves medical separation. As we understand it, some of their comments concern whether the proposed changes intended to better align UC policy with ADA requirements in fact narrow the university’s capacity to handle cases with complex temporalities of disability, and additionally, reduce the foundation for effective employee response. Some of their comments are not directed at the new changes but rather at existing, potentially problematic, language and policies in the APM. Though employee comment to only the proposed changes to the APM is being invited, we hope that you will also consider comments on how to further improve the existing language and policy. In addition to sharing these questions and concerns raised by Schweik, Chen and Sherwood, we would like to add another: what are the employee options for health insurance coverage after medical separation?”

There was no formative response to the concerns raised by the 2014 Schweik-Chen-Sherwood letter. FCDR will follow up with the current administration to see if clarifications are possible.