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Today, the Attorney General released an opinion determining that Title II of the Americans with Disabilities Act (“ADA”) requires public bodies subject to the Open Meetings Act (“OMA”) to provide reasonable accommodations to allow elected officials and members of the general public with a qualifying disability to fully participate in meetings if the requirements of the ADA are met. In practice, this means elected and appointed officials and members of the general public with a qualifying disability will require a reasonable accommodation to participate in meetings subject to the OMA, which may include remote attendance.

This opinion specifically addresses the practical impacts felt by local public bodies given the restrictions placed by the Open Meetings Act (“OMA”) on remotely held public meetings. As of January 1, 2022, the OMA only permits electronic attendance to accommodate an official absent due to military duty. The restriction took away a public body’s ability to use electronic meetings to (1) accommodate members with qualifying medical conditions, or (2) host a meeting electronically when their municipality was subject to a statewide or local state of emergency (which included declared emergencies for COVID-19). Up to this point, the legislature had given no indication as to whether any further legislation would pass to allow any additional situations where public meetings could be held remotely.

In the opinion, the Attorney General that the ADA preempts state laws when necessary to effectuate protections afforded under the ADA. Since the OMA currently fails to allow a mechanism that allows individuals with a qualifying disability to fully participate in public meetings, the OMA, according to the Attorney General, is inconsistent and preempted by the ADA. Observing that COVID-19 pandemic related conditions still prevent some individuals from participating in in-person meetings, the Attorney General opines:

[T]he Americans with Disabilities Act and Rehabilitation Act require state and local boards and commissions to provide reasonable accommodations, which could include an option to participate virtually, to qualified individuals with a disability who request an accommodation in order to fully participate as a board or commission member or as a member of the general public in meetings that are required by the Open Meetings Act to be held in a place available to the general public. It is my opinion, therefore, that the Americans with Disabilities Act and Rehabilitation Act require state and local boards and commissions to provide reasonable accommodations, which could include an option to participate virtually, to qualified individuals with a disability who request an accommodation in order to fully participate as a board or commission member or as a member of the general public in meetings that are required by the Open Meetings Act to be held in a place available to the general public.”

For local public bodies, this now means that, when a board member or member of the general public requests an accommodation to participate remotely in a public meeting, that individual must show that they have a “qualifying disability” under the ADA. This is a “heavily fact dependent inquiry and resolved on a case-by case basis.” Although the Attorney General cautions “it cannot be stated that, in all situations, an immune-compromised individual is a ‘qualified individual with a disability’” facts may indicate that they are, and thus entitled to fully participate in meetings remotely.

If the individual does have a qualifying disability, the accommodation must be considered reasonable. An accommodation is reasonable unless it requires a fundamental alteration in the nature of the program or imposes an undue financial or administrative burden. The Attorney General explains that a request for a fully virtual meeting may place too high a burden, but a hybrid request could be sufficient, especially since most Townships have provided hybrid options in the past and currently provide hybrid options for members on active military duty.

When a board member or member from the public requests a remote accommodation for a public meeting, public bodies should make these determinations:

• Determine whether the individual is a qualified individual with a disability under the ADA; and
• Determine if the requested accommodation is reasonable.

If the two criteria are met, public bodies and Townships should provide the accommodation to be compliant with the ADA. This accommodation will not violate the OMA, thus allowing individuals with a qualifying disability to fully participate remotely.

In concluding her opinion, the Attorney General reaffirms existing federal guidance that local governments engage in self-evaluation to assess their ability to accommodate members of the public with a qualifying disability.

This Attorney General Opinion is not binding on local municipalities, but it is persuasive authority on the application of the ADA on local government units.

If your Township has questions about accommodating the electronic participation of individuals with a qualifying disability, you should contact your legal counsel.

Our municipal team at Fahey Schultz Burzych Rhodes is available to help your Township navigate these issues. Please contact us for assistance.

For a copy of the Attorney General’s Opinion, please read here: Attorney General Opinion 7318 (Link Here)

This communication is not intended to constitute legal advice. COVID-19 related regulations and guidelines are evolving rapidly and each of your circumstances are unique, so we encourage you to reach out to us if you have questions about this or other COVID-19 related government action.