By now you should be familiar with the Americans with Disabilities Act (ADA), along with its state and local equivalents. Simply stated, these laws prohibit discrimination in both employment and "public accommodation" based on an individual’s disability. But how do these laws apply to the camp industry?
Read on to learn the dos and don’ts as they relate to hiring and acceptance of campers into your program. Also provided is a step-by-step template to follow whenever issues relating to these laws appear.
Whenever a camp becomes aware of a staff member’s disability, it must consider if the person can perform the essential job functions with or without "reasonable accommodations" (implant these two words into your memory), meaning accommodations that do not impose an "undue hardship" on the employer. By design, these are amorphous phrases that reflect the individuality of each person, disability, and workplace.
This pertains to campers who apply to your program. In the camp setting, this rarely means physical accessibility (wheelchair ramps, etc.), but rather program participation and management of a medical condition. (Note: "Religious organizations," which have been defined broadly as including most nonprofit religion-based camps, are exempt from the public accommodation portion of the ADA, though they are still subject to the employment requirements of the law.)
- Never take a position in advance that your camp does not accept anyone with a particular disability. Statements such as "Our facility is not equipped to handle anyone with diabetes," are de facto violations of the law. This does not mean that you must accept anyone with diabetes (or any other disability), only that you apply the reasonable accommodations / undue hardship (RA/UH) analysis to their individual situation. In other words, never say never.
- Don’t ask questions during the application process about disabilities and accommodations. While it is arguably OK to ask questions such as "Are you able to perform the essential job functions (or participate in regular camp activities) with or without reasonable accommodations?" asking about reasonable accommodations during the application process should be avoided. In addition, any question during the application process that could reasonably be construed as a back door inquiry to determine if the person has a disability — such as, "Do you see a therapist?" or, "Has your child undergone any surgical procedures, or do they take any psychotropic medications?" — should not be part of any application process. Only after a conditional offer/acceptance is made can you ask about disabilities and specific accommodations.
- After an applicant has been accepted/offered employment, you can and should ask if the individual will require accommodations to perform the essential job functions (or participate in activities). Be sure to phrase the question in a positive and inclusive fashion rather than a negative one. For example, "In order for your child to have a safe and successful experience, it is essential that we be made aware of any disability or condition that may require reasonable accommodations. This information is not sought to in any way to exclude or label your child, but to help us understand what must be done to assure the best experience for them. Please let us know in the next 10 days so that we may have adequate time to work with you as we approach the camp season."
- Create a mindset or default position that all campers and staff with a disability will be accepted unless you are unable to do so without undue hardship. Stated in legal terms, the burden of proof is on you to show why you cannot make accommodations rather than the other way around.
- Approach every situation individually. Even if the disability is one you have experienced in the past, you must be willing to assess the individual needs of each applicant before making a decision.
Reasonable Accommodations and Undue Hardship
What do these actually mean? Perhaps this is best answered with a few examples.
A staff member has a mobility disability that requires a golf cart be used to transport them from one activity to another. Camp has a strict policy against anyone other than senior staff using golf carts for transportation. Bending the rule to allow this individual to use a cart would be considered reasonable. On the other hand, if the camp does not have any golf carts or similar transportation devices, having to purchase one just for this purpose would not be considered reasonable.
A camper has a condition that requires a high level of supervision. In most day camp settings, allowing the camper to have a dedicated, one-on-one helper — someone who is specifically assigned to supervise the camper throughout all or part of their day — would be reasonable. At a sleepaway camp, depending upon the camp’s facilities and availability of living quarters, this may not be so reasonable. Note that a camp is not required to hire a one-on-one helper at its expense. The accommodation is to allow this supervision to happen (as long as it does not create an undue hardship), not to pay for it.
Two campers present with Type 2 diabetes. One is 13 and has dealt successfully with the condition for the past six years. The other is seven and was just diagnosed two months ago. Your nurse says they are not comfortable being responsible for either camper, both of whom present a higher risk. In this instance, it is possible that a reasonable accommodation may be available for one child and not the other, taking into consideration the age, length of time, and severity of the illness as it affects each child. Any concerns must be specific to the person with the disability. Speculation of possible risk (a child with hearing loss may be generally more likely to sustain an injury) is not a valid reason to exclude a person with a disability, nor is the possibility of an increase in insurance rates.
Tell Me What to Do
- Remember that you are never automatically mandated to accept a person with a disability. Instead, compliance with the ADA requires you to follow a specific set of protocols before deciding whether you can comply with the RA/UH standard. Doing so will offer a strong defense to any ADA-related claim, and even if it turns out that you decided wrongly, the fact that you made the effort should shield you from any substantial penalty that would otherwise be assessed against a camp that simply said, "No, we won’t take you," without first going through the process of making an individual assessment.Once you are made aware of the disability, if you have any concerns about the person’s ability to function with or without an accommodation, you are free to discuss the issue directly with the parents or employee. There is no need to beat around the bush. The key is to phrase all questions in terms of your desire to make reasonable accommodations and to treat each person individually. Statements such as "We don’t accept kids with ADD" are a big no-no and will get you in trouble every time. (Sorry for the redundancy, but it bears repeating.)
- If after this conversation you have any concerns, you can insist on speaking with the individual’s health care provider. In order to do so, the person (or parent) must give permission to the provider. If the person refuses, the inquiry is over, and you can refuse to accept the person on the grounds that they are preventing you from obtaining the information you need to comply with the law.
- When speaking with the health care provider (when possible, it is a good idea to do so along with a member of your medical staff), be careful not to ask questions such as, "Do you believe this camper can function in camp?" or "Do you feel this individual can fulfill the requirements of the job?" The provider will almost never disagree with their patient and 99 percent of the time will give their stamp of approval. And when it comes to camp, it is you — not the doctor — who is the expert and who has the final say, and you should no more ask for a doctor’s opinion about camp than they would ask you for medical advice. You know your camp best; asking the doctor to make the ultimate decision will provide little guidance while getting you in trouble if you disagree with their assessment. Instead of delegating the decision to the provider, talk about your camp and your concerns, and ask questions directed to the unique layout, programs, schedules, and facilities of your particular camp. ("Can this person walk up steep hills on uneven terrain? What is this person’s reaction to loud noises and constant stimulation? Are you in any way concerned that the nearest hospital is 45 minutes away?") Once armed with the answers, you are ready for the next step.
- Discuss any remaining concerns with the parents or employee. What accommodations are you able to provide? Or are you unable to make any that are reasonable? Always phrase the discussion in terms of your desire to make this work, and in terms of the child’s safety or, in the case of a staff member, the safety of the campers and the employee themselves. Sometimes a statement as simple as, "We will do everything we can to accommodate your child, but I have to tell you, as a camp director with XX years of experience, I have concerns about your child’s safety and ability to have a successful summer," may lead to a parent’s decision to withdraw the child. If you agree upon an accommodation, make the plan as specific as possible. There is nothing wrong with a "trial period" to see if the plan will work, if it needs adjustments, or if the experiment has failed. If it turns out that the child is unable to complete the season, even if due to a parent not being completely forthright about their child, return any unused portion of tuition. Many formal complaints to federal or state authorities are based upon a camp’s decision to retain all tuition monies.
- It is essential that all discussions, whether with a health care provider, parent, employee, or anyone else, focus on the child or employee as an individual. In other words, avoid stereotypes. The main thrust of the ADA is that each person must be treated as an individual rather than as a member of a group.
ADA-related decisions are often difficult. They must balance your personal desire to provide opportunities to individuals with disabilities along with your need to provide a safe environment for campers and staff. By following these steps, you will help shield yourself from a discrimination claim. More importantly, you will likely garner the information you need to make a decision that is not only legally compliant, but that is best for your camp, your staff, and your campers.
Alan Cooper, Esq., is general counsel and claims director at AMSkier Insurance.