èßäapp

Executive Order No. 42, issued 12/18/2014, Amended 7-28-20; Bd. Min 4-21-21.

1. Purpose: This policy addresses the standard and process to be used when determining whether a faculty member is unable to perform the essential functions of the faculty member’s position because of a medical condition and whether a faculty appointment should be terminated for medical reasons.  Issues concerning interpretation and application of this policy are to be addressed in the review and determination process stated in this policy and are not subject to further review under the Academic Grievance Procedure in Section 370.010 of the Collected Rules and Regulations.  Application of this policy is not intended as a substitute for other University policies or procedures related to performance, including those imposed because of clinical or professional requirements. In addition, application of this policy is not a substitute for discipline or action taken because of performance deficiencies unrelated to ability.
2. Scope: This policy applies to faculty members, either tenure/tenure track or non-tenure track, described in Section 310.020A of the Collected Rules and Regulations of the University of èßäapp as holding academic staff appointments. This policy is intended to be consistent with the Americans with Disabilities Act, the Rehabilitation Act of 1973 and the èßäapp Human Rights Act and should be interpreted to assure compliance with these laws.
3. Special Considerations for Faculty Members:  Faculty members have rights that stem from the University’s Collected Rules and Regulations, from the application of the general principles of academic freedom, and from the role of faculty members in the shared governance structure within the University of èßäapp. This policy is not intended to compromise this special status but rather is intended to clarify and protect the rights of such faculty members and of the University of èßäapp and its constituents.
4. Rights and Obligations of Faculty Members:
   
   1. Faculty members shall incur no loss of pay or benefits solely because the evaluation process discussed below is underway until and unless official action is taken to alter the faculty member’s employment status in conformity with provisions of the Collected Rules and Regulations of the University of èßäapp.
   2. Faculty members subject to the evaluation of ability to work process have an obligation to act in good faith and cooperate with the administrative coordinator.  Failure to attend a reasonably scheduled evaluation may justify disciplinary action and may be considered sufficient evidence to conclude that the faculty member cannot continue to fulfill the terms and conditions of the individual’s faculty appointment.  Upon a faculty member’s failure to attend a reasonably scheduled evaluation, the administrative coordinator will notify the provost, the provost will make a determination as to the faculty member’s ability to work, and the process will move forward as stated in section F.3 below.
5. Rights and Obligations of the University:
   
   1. The costs of the fitness for duty evaluations by the health care professionals designated by the University and the associated costs will be borne by the University, and not by the faculty member.
   2. If the outcome of the evaluation is Able to Work with Limitations (see Section F.3. Procedures below) the University shall make reasonable efforts to accommodate those limitations in accordance with Section 600.080 of the Collected Rules and Regulations.
6. Procedures:
   
   1. Evaluation:  A faculty member of the University may be required to be examined by appropriate licensed/certified health care professional(s) designated by the University in order to determine the faculty member’s ability to perform the essential functions of the faculty member’s position. Such an evaluation may be required when there is reasonable cause to believe that the faculty member’s ability to perform essential functions of the faculty member’s position is impaired by a medical condition, or that the faculty member poses a direct threat to self or others due to a medical condition.
   2. Process:  The dean of the faculty member’s college or school or the dean’s designee may request that this policy be invoked for a particular faculty member by notifying the campus provost of the facts suggesting a need for such an evaluation.

      The campus provost, in consultation with the appropriate academic unit head, the chief campus human resources administrator and a representative of the Office of the General Counsel will determine whether an evaluation is warranted based on the standard stated in F.1. above.

      1. The provost will seat an evaluation panel composed of a provost’s designee, the dean or designee of the school or college where the faculty member holds an appointment, and two tenured faculty members appointed by the chair of the campus faculty senate or council, including at least one faculty member from the same school or college as the faculty member whose fitness for duty evaluation is being sought.

         The panel will review the request and make a recommendation as to whether the academic unit head has demonstrated 1) that an evaluation is warranted based on the standard stated in F.1. above, 2) that the academic unit and the faculty member have been involved in efforts to resolve the problem, and 3) that a mutually satisfactory resolution has not been achieved. The panel will reach a recommendation by vote.  In the event of an evenly split vote, the panelists may issue their own recommendations along with the reasons for them.

      If the provost determines an evaluation is warranted, the provost will appoint an administrative coordinator to facilitate the evaluation process. The administrative coordinator will have knowledge of applicable privacy rules and policies and will have appropriate resources to ensure that charges associated with the evaluation are paid by the University.  The administrative coordinator, in consultation with the General Counsel’s office, will take the following steps:

      1. Inform the faculty member in writing that an evaluation is required and provide information on the faculty member’s and University’s rights and obligations under this policy.
      2. Prepare a list of three to five health care professionals, at least one of whom is not employed by the University, for the evaluation process.
         
         1. The faculty member to be evaluated, or in the event that the faculty member is unable or unwilling, an authorized representative with legal authority to make health-care decisions for the faculty member to be evaluated, shall select from the list the health-care professional(s) to perform the evaluation.
         2. If the faculty member to be evaluated or the faculty member’s authorized representative has not selected the health-care professional(s) to perform the evaluation within two weeks following receipt of the list of health-care professionals, the coordinator will select the health-care professional(s) to perform the evaluation and inform the faculty member to be evaluated of the selection.
      3. Inform the faculty member of the time and place of the required evaluation.
      4. Gather and assemble the evaluation materials and present them to the provost.

         In cases where a direct threat to health or safety of the faculty member or others may exist, the faculty member will be suspended with pay by the provost pending the outcome of the evaluation.  The provost will notify the faculty member of the proposed suspension with pay, and the faculty member may request reconsideration by submitting a written response within five business days.

   3. Outcome of the Evaluation: The administrative coordinator will forward to the provost and faculty member an evaluation report from the designated health care professional describing the focus, method, and results of the evaluation, and the health care professional’s conclusion regarding the faculty member’s ability to perform essential functions of the faculty member’s job.  The faculty member may submit any response to the evaluation report, along with any supporting materials, to the provost within five business days.  The provost will review the evaluation report and any response.  Within ten business days after receipt of the evaluation report, the provost will notify the administrative coordinator of the provost’s determination as to the faculty member’s ability to work. That determination will include one of the following: able to work without limitation; able to work with limitations; unable to work.
      
      1. Able to work without limitation: If the provost determines that the faculty member is able to work without limitations, the coordinator will notify the faculty member and the academic unit head within five business days after receipt of the provost’s final determination. If the faculty member was suspended pending the outcome of the evaluation, the suspension will terminate upon receipt of this notice. 
      2. Able to work with limitations: If the provost determines that the faculty member is able to work with limitations, the coordinator will notify the faculty member and academic unit head within five days, and the University will make reasonable efforts to accommodate those limitations in accordance with Section 600.080 of the Collected Rules and Regulations.
      3. Unable to work: If the provost determines that the faculty member is not able to perform the essential functions of the faculty member’s job, the coordinator will notify the faculty member and academic unit head within five business days. The coordinator will work with the faculty member as to the faculty member’s options, which must be agreeable to the provost, and which may include, but are not limited to, application for long term disability benefits, unpaid leave of absence, resignation or termination of the faculty member’s tenured appointment or term appointment before the end of the period of appointment.  The notification also will identify the chair of the Campus Faculty Committee on Tenure (see Faculty Committees on Tenure 310.050 of the Collected Rules and Regulations).
         
         1. If no agreeable alternative to termination of appointment is identified, the faculty member may request review by the Campus Faculty Committee on Tenure.  Such a request for review must be submitted to the provost, the coordinator, and the chair of the Committee on Tenure within five business days of notice of the provost’s determination.  The request for review will specify whether the faculty member wishes to make an appearance before the Campus Faculty Committee on Tenure.  Upon receipt of the faculty member’s request, the coordinator will provide the following materials to the Campus Faculty Committee on Tenure with a copy to the faculty member:  the request to invoke the evaluation of ability to work process, the evaluation panel recommendation(s), the evaluation report, the faculty member’s response and supporting materials (if any), and the provost’s determination. 
         2. The faculty member and provost may submit written arguments to the Campus Faculty Committee on Tenure within ten business days of the faculty member’s request for review, with copies to the coordinator.  If requested, the faculty member will be afforded an opportunity to appear before the Campus Faculty Committee on Tenure within ten business days of the faculty member’s request for review and the provost will be afforded an opportunity to appear at the same time as the faculty member.  The Campus Faculty Committee on Tenure will review the materials presented to it by the coordinator and the arguments of the faculty member and provost, but will not hear witness testimony or take additional evidence.
         3. Within twenty business days of the faculty member’s request for review, the Campus Faculty Committee on Tenure will provide a recommendation to the chancellor whether the faculty member’s tenured appointment should be terminated, with copies to the coordinator, the provost, and the faculty member.  The coordinator will provide to the chancellor copies of all materials and arguments submitted to the Campus Faculty Committee on Tenure.
         4. After giving due consideration to the recommendation of the Campus Faculty Committee on Tenure, the chancellor shall issue a final determination whether the faculty member’s tenured appointment will be terminated.  The determination of the chancellor is final and not subject to further review under the Academic Grievance Procedure in Section 370.010 of the Collected Rules and Regulations.
      4. If the faculty member takes an unpaid leave of absence, a follow-up evaluation will be required to certify that the faculty member is able to return to work and under what conditions prior to the faculty member’s return to work.
   4. Extensions of Time: For good cause, the chancellor or provost may grant reasonable extensions of time for any of the proposed time deadlines in the Evaluation of the Ability to Work.
   5. Confidentiality and Access to Information: Reports and other information about the evaluation and any follow-up treatments shall be kept by the provost and will not be included in the faculty member’s personnel file. Upon written request, the faculty member may inspect report(s) by the designated health-care professional(s) who conducted the faculty member’s evaluation in accordance with applicable laws. The provost will provide those in the faculty member’s reporting chain with only that information about the faculty member’s condition necessary for the proper supervision of the faculty member.