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Last Updated: 11/20/2017
 

Ask the Attorney with John Brower, J.D.   [Back to Ask the Attorney]

Question: We are currently in the process of creating a 504 plan for our son, who is in first grade and has a severe peanut/nut allergy. If he comes into contact with peanuts he is at high risk for anaphylaxis. Washing hands will not work because of the residue left on the faucets.  I was told by the principal at the beginning of the school year that, in order to have the children wipe their hands, we had to supply the wipes and I needed to come to school each day to pass the wipes out. Despite our efforts, he has had two contact reactions at school this year. The expense of the wipes and taking the time to come to school each day is becoming a real burden. Can the school refuse to supply the wipes and make us come in every day?
  
 

Answer:  First, many school districts across the country and here in Michigan are responding to the “nut allergy” issue by making their schools “peanut free”.  You may wish to locate some of these policies from neighboring districts and then ask your school board, in open session with the media present, to also make your schools “nut free”.

Failing that, under §504 of the Rehabilitation Act of 1973, a public entity (i.e. public schools) is required to provide "reasonable accommodations", which are defined by statute (with my emphasis added) as:

            §  84.12 Reasonable accommodation.

(a) A recipient shall make reasonable accommodation to the known physical or mental limitations of an otherwise qualified handicapped applicant or employee unless the recipient can demonstrate that the accommodation would impose an undue hardship on the operation of its program.

(b) Reasonable accommodation may include:  (1) making facilities used by employees readily accessible to and usable by handicapped persons, and (2) job restructuring, part-time or modified work schedules, acquisition or modification of equipment or devices, the provision of readers or interpreters, and other similar actions.

(c) In determining pursuant to paragraph (a) of this section whether an accommodation would impose an undue hardship on the operation of a recipient's program, factors to be considered include:

(1) The overall size of the recipient's program with respect to number of employees, number and type of facilities, and size of budget;

(2) The type of the recipient's operation, including the composition and structure of the recipient's workforce;  and

(3) The nature and cost of the accommodation needed.

While your school district appears to be willing to require the students to wipe their hands, when they state they are unwilling to supply the wipes and you need to absorb part of the labor cost associated with implementing the wiping procedure, what they are really stating from a legal perspective is that what you are asking for is “unreasonable”.  No one can tell if any requested accommodation is unreasonable or not without looking at all the facts, including the costs of the wipes, the labor costs, the school budget, the risk that not wiping may mean the death of a student in their care, etc.

What does happen when parties cannot agree on what is "reasonable" is that they turn to a third party to make that determination.  That third party could be a judge or jury (if a law suit is filed) or a §504/IDEA hearing officer.  It could also be a decision made by the administrative agency that is responsible for the law in question.  In regards to discrimination claims arising from eligible disabled students under §504 or the Americans with Disabilities Act (ADA), that agency is the Office of Civil Rights (OCR). 

Before you actually file a complaint with OCR, you may want to inform the school administration of your plans and ask if they wish to reconsider their position.  From my experience from filing complaints on behalf of my private clients, school administration and their attorneys understand that once a complaint is filed and IF OCR elects to proceed with it, it will take significant staff time and effort to respond.  It is also possible that OCR may find that a school’s denial of an accommodation was not only unreasonable, but it may require the school to do a lot more as a “reasonable accommodation” including detailed medical response procedures, daily room cleaning procedures, building modifications to exhaust systems, floor material, etc. To file a complaint with OCR, you can do so by going to their web site which is at:

www.ed.gov/about/offices/list/ocr/docs/howto.html

I hope my understanding of this area of education law, which other may or may not agree with, helps your understanding of the subject 

John F. Brower, JD – Managing Partner

c/o Law Office of John F. Brower, Brighton, MI

(information@michedlawcenter.com)

Education Law Center, PLLC · 810-227-9850 · www.michedlawcenter.com 

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