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Attorney General Opinion 7318
Meeting attendance accommodations required under ADA
Michigan Attorney General Dana Nessel issued Attorney General Opinion 7318 on Feb. 4, 2022, concluding that the federal “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 held in a place available to the general public.”
This opinion addresses the current language of the OMA which requires all members of a public body subject to the OMA to attend their meetings in-person to be able to participate fully—with the sole exception of a member of the public body who is absent due to their participation in the military, who must be provided with remote participation through virtual meeting or teleconference options. MTA Legal Counsel have previously advised that per the current language of the OMA, other board members who view a meeting remotely should not participate. But this prior advice was from a general perspective and not responding to the question of an ADA-covered illness. MTA Legal Counsel agrees that reasonable accommodations must be considered for ADA-covered illness. The AGO advocates for board members who have an ADA-covered disability to participate remotely as a possible accommodation.
The opinion also applies to members of the public. The OMA currently does not require the public to attend meetings in-person, and a public body may provide remote access and participation—but this opinion concludes that a person who is a “qualified individual with a disability” under the ADA must be provided with reasonable accommodations, which would likely include virtual meeting or teleconference options, which are readily available.
The determination of whether a person is a “qualified individual with a disability” may be made under long-standing existing federal laws and guidance.
The AGO cites the ADA definition of “disability” as “a physical or mental impairment that substantially limits one or more of the major life activities” of an individual. A “qualified individual with a disability” is “an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services of the participation in programs or activities provided by the public entity.” (Citing 42 USC 12131(2))
“[I]t cannot be stated that, in all situations, an immuno-compromised individual is a ‘qualified individual with a disability.’ But 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 well form the basis for a sufficient showing.” (AGO 7318 of 2022)
The opinion encourages state and local boards and commissions “to proactively evaluate the services they provide and, to the extent reasonably possible, offer alternatives to completely in-person, physical meetings” even without being asked to respond to specific requests or before making a “necessarily fact-intensive analysis to determine whether a requestor is a ‘qualified individual with a disability’”. (AGO 7318 of 2022)
Attorney general opinions are binding on the Legislature and state agencies, but not townships or other local governments. Townships should work with their attorneys to determine the best approach based on their individual circumstances.