June 28, 2022

Volume XII, Number 179

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June 27, 2022

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Michigan AG: Public Bodies Must Offer Reasonable Accommodations Under the ADA Which Could Include a Remote Participation Option for Meetings Held Pursuant to the Open Meetings Act

On February 4, 2022, Michigan Attorney General Dana Nessel opined that the Americans with Disabilities Act (the "ADA") requires public bodies to afford an individual with a disability a reasonable accommodation to participate in meetings subject to the Michigan Open Meetings Act (the "OMA"), which could include the option to participate virtually. Any individual with a disability, whether a member of the public or a member of the public body, may be entitled to an accommodation.

The OMA requires that "[a]ll meetings of a public body must be open to the public and must be held in a place available to the general public." MCL 15.263(1) (emphasis added). Traditionally, the OMA has been interpreted to mean that meetings must be held within a physical space, not a virtual one. However, in light of the COVID-19 pandemic, the OMA was amended in recent years to allow public meetings to be held electronically, which authorization expired as of January 1, 2022. Consequently, all public meetings now must be held in person, subject to limited exceptions for members of the public body serving in the military.

As the Attorney General noted, the OMA does not generally provide any accommodations for disabled individuals' access to public bodies as members of the public body or the general public. In her opinion, though, she stated:

"[T]he [ADA] 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 [OMA] to be held in a place available to the general public."

In discussing whether an individual qualifies for an accommodation, the Attorney General recognized that the analysis is "heavily fact-dependent and resolved on a case-by-case basis," and therefore, "it cannot be stated that, in all situations, an immune-compromised individual is a 'qualified individual with a disability'" under the ADA. However, "the existence of such a condition, or any other underlying condition, that makes an individual particularly susceptible to contracting an illness or disease such as COVID-19 if they were to attend a meeting in a public, physical space, could very well form the basis for a sufficient showing."

As a result, the Attorney General opined, when a public body receives an accommodation request from an individual with a disability, that public body "must consider whether it can modify its meetings without incurring an undue burden or fundamentally altering the nature of the meetings." In addition, the Attorney General argued that because Michigan's public bodies must already provide remote access and allow full participation for a member of the military, and many have already gone virtual during the COVID-19 pandemic, "it seems unlikely that a request for a hybrid approach of an in-person meeting and telephone access or a virtual platform would result in an undue administration or financial burden or constitute a fundamental alteration of a [public body's] meetings."

It is important to note that attorney general opinions are not binding on local units of government, but are binding on state public bodies. Nonetheless, due to the burden of fact-intensive inquiries which could result from requests for reasonable accommodations at public meetings, whether from members of the public or members of the public body, public bodies should be prepared to consult with legal counsel about such requests and appropriate policy considerations. 

© 2022 Miller, Canfield, Paddock and Stone PLC National Law Review, Volume XII, Number 53
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About this Author

Scott R. Eldridge Labor & Employment Attorney Miller, Canfield, Paddock and Stone Lancing, MI
Principal

Scott Eldridge focuses his practice on management-side labor and employment law, governmental litigation, and commercial litigation.

He represents colleges and universities, municipalities, non-profits, public bodies, government contractors, and commercial enterprises in state court, federal court, and administrative tribunals. Scott also routinely represents his clients in the Michigan Court of Appeals and the Michigan Supreme Court.

Labor and Employment Law

• Employment litigation defense (discrimination, harassment, whistleblower claims)

• Title VII of the...

517-483-4918
Schuyler A. Ferguson Employment Attorney Miller Canfield Detroit
Associate

Schuyler Ferguson is an associate in Miller Canfield's Employment and Labor Group.

Schuyler has represented employers in all phases of litigation, including extensive motion practice, discovery procedures, trial, and appeals. He has litigated cases and conducted internal investigations involving discrimination, harassment, retaliation, wage-and-hour compliance, restrictive covenants and trade secrets. His litigation experience includes representing clients in state and federal courts, as well as in proceedings before various government agencies...

313-496-7533
Ronald Liscombe Finance Lawyer Miller Canfield Law Firm
Principal

Ronald C. Liscombe assists public sector clients with a range of issues, including public finance and governance matters. 

Ron has deep knowledge of state and local government, having worked in a variety of policy and program management roles prior to joining the firm. He is able to counsel and provide direction to public entities to develop innovative and effective strategies in response to challenging policy issues.

His experience includes advising and counseling two start-up public entities in all general legal matters, including the development of policies and procedures...

313.496.7906
Steven D. Mann Finance Attorney Miller, Canfield, Paddock and Stone Detroit, MI
Principal

Steven D. Mann specializes in the area of municipal finance, representing public agencies as bond counsel.

His practice covers all facets of tax increment financing, special assessments, and economic development. He has also authored several amicus curiae briefs for both the Michigan Court of Appeals and the Michigan Supreme Court, arguing on behalf public bodies and municipal associations in cases involving complex issues related to the Freedom of Information Act and the Open Meetings Act.

313-496-7509
Brian Schwartz Employment Attorney Miller Canfield Law Firm
Principal

Brian Schwartz represents management in various aspects of labor and employment counseling and litigation.

His practice focuses on defending single-plaintiff and class-action lawsuits involving retiree health benefit disputes, employment discrimination (race, gender, and disability discrimination), harassment, and retaliation claims, as well as wage and hour claims, FMLA claims, ERISA disputes, Title IX claims, Freedom of Information Act and due process lawsuits. He also counsels employers on drafting enforceable non-competition, non-solicitation and confidentiality...

313.496.7551
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