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NCAA Mental Health Best Practices and the ADA

Recently, the NCAA came out with best mental health practices for student athletes. Those best mental health practices can be found here. What I am particularly concerned with is Appendix F, which has all kinds of screening questions designed to assess whether a student athlete has a particular MH disability. Those screening questions include: a general index; disordered eating; depression; anxiety; alcohol use; marijuana use; sleep apnea; insomnia; and ADHD. There is absolutely no doubt that these questions would be considered disability related inquiries as discussed in this blog entry of mine. So, the very first question is whether the student athletes would be considered employees. If so, these disability related inquiries, as discussed in the aforementioned blog entry, would not be permissible unless made pursuant to a conditional job offer i.e. being a student athlete. Whether a student athlete is an employee is not an easy question to answer. For example, many people are aware that an administrative judge of the NLRB found Northwestern football players to be employees. That decision was appealed and the NLRB elected not to get involved and threw it out.  Nevertheless, the question remains whether a student athlete is an employee. If they are, then the title I statutory scheme with respect to preemployment medical inquiries/disability related inquiries, conditional job offers, postemployment medical exams needs to be followed. If they are not, then, the question becomes just what are the essential eligibility requirements of the program or activity the student athlete is involved in. Clearly, a school would be within its rights to insist upon a person being physically and mentally able to perform as a student athlete. The question is has the school listed that as an essential eligibility requirement? Have they even methodically developed essential eligibility requirements?

So, let’s assume that the student athlete is not an employee. The question then becomes has the school listed being in good physical and mental health as an essential eligibility requirement of being a student athlete. Assuming it has, I don’t see the problem in having these questions answered. The question becomes what does the school do once the questions are known. If the school summarily dismisses or unduly restricts an athlete that reveals positive answers to any of these questions, then the school has a problem. The question the school needs to answer is whether the person can do the essential functions of being a student athlete with or without reasonable modifications; Reasonable modifications being anything short of a fundamental alteration or an undue burden.

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Takeaways:

  1. Perform an audit as to whether your University or college is in compliance with the ADA.
  2. Don’t forget about § 504 of the Rehabilitation Act, which has similar but not exactly the same rules as the ADA. Also, causation is different.
  3. Make sure your athletic programs have essential eligibility requirements and that being in good physical or mental health is one of those requirements.
  4. Once asking the questions and getting the answers, make sure that if a disability is revealed, it is assessed whether the person can perform the essential functions of being a student athlete with or without reasonable modifications. Remember, you want to be thinking in both terms of an undue burden as well as fundamental alteration.