ADA & IT InFocus Volume 10, Number 2
Spring - Summer 2005
- ADA and IT Issues:
- ADA Rulings:
- What’s New:
ADA & IT IN FOCUS is published three times yearly by the ADA & IT Information Center for the Mid Atlantic Region. It is posted to the web on the “Publications” page at www.adainfo.org. It is also available by request in large print, Braille, audio cassette, and computer disk.
Richard G. Luecking, President TransCen, Inc. is a Rockville, MD based firm specializing in human resources issues that impact workplace diversity. TransCen administers the ADA & IT Information Center, providing business and technical assistance to DE, DC, MD, PA, VA and WV.
This is a publication of the ADA & IT Information Center, funded by the National Institute on Disability and Rehabilitation Research of the U.S. Dept. of Ed. (Grant # H133D010212). The opinions contained in this publication are those of the grantee and do not necessarily reflect those of the Dept. of Education.
ADA & IT Information Center ADA and IT ISSUES:
HIDDEN DISABILITIES: DISCLOSURE AND DOCUMENTATION ISSUES AT WORK AND SCHOOL
Almost fifteen years after the passage of the Americans with Disabilities Act (ADA), confusion still exists about who has a disability and how to provide appropriate and reasonable accommodations and modifications for individuals with disabilities.
Much of this confusion swirls around the issues related to hidden disabilities, particularly in employment and educational situations, where the relationships are complex, long-term, and of vital importance in people’s lives. Some of the issues that can arise at work or school – disclosure, medical documentation, confidentiality – don’t tend to come up as much on a typical trip to the grocery store! It is critical for individuals with hidden disabilities, employers, and educational entities to understand these issues in order to exercise their rights and fulfill their responsibilities under the ADA.
What are hidden disabilities?
“Hidden disabilities” is a term commonly used for conditions or impairments that are not readily apparent to others. Unlike individuals who use wheelchairs, are missing limbs, or have severely limited vision, individuals with hidden disabilities have impairments that are not obvious. Hidden disabilities can include epilepsy, dyslexia, depression, HIV/AIDS, diabetes, and many other conditions.
The ADA protects people with either physical or mental impairments, regardless of whether the impairment (or its effects) are obvious or hidden, as long as the impairment substantially limits a major life activity. The following examples illustrate how certain hidden impairments may limit major life activities:
All three individuals have a hidden impairment which limits a major life activity. They may all have ADA-protected disabilities, depending on the severity of the limitations.
Major life activities may also include sleeping, caring for oneself, breathing, walking, reproducing, and other activities of daily life. If individuals have a record of, or are regarded as having such a substantially limiting impairment, they can also fall under the protection of the ADA.
Accommodations and Modifications
Individuals with disabilities, both visible and hidden, are entitled to reasonable accommodations in many workplaces and reasonable modifications in most educational settings.
In the workplace, a reasonable accommodation is an adjustment or modification to a job or work environment. Accommodations are designed to enable a qualified applicant with disability to apply for a job, or to enable an employee to perform the essential functions of a job, or to enjoy the same benefits and privileges as co-workers.
Reasonable accommodations are dependent on an individual’s functional limitations and an employer’s needs and policies. Some examples of accommodations which may benefit employees with hidden disabilities include modified / flexible work schedules, task checklists, job restructuring, quiet work sites, tele-commuting, unpaid leave, or allowing the individual to have a service animal in the workplace.
The ADA also requires that reasonable modifications in policies and practices be made for students with disabilities in most educational institutions. In fact, students with disabilities are protected by a variety of Federal laws.
The ADA covers all state and local government and most private educational entities, the Rehabilitation Act of 1973 protects students in schools which receive Federal funds, and the Individuals with Disabilities Education Act (IDEA) grants specific rights to students with disabilities in elementary and secondary school.
When students with disabilities need academic adjustments in postsecondary institutions, they must make a request. Modifications can include things like materials on tape, extended time on tests, distraction-free testing sites, note takers, oral exams, and the use of assistive technologies such as calculators or word processing software programs that assist with spelling, grammar, etc.
Accommodations or modifications do not include elimination or lowering of legitimate requirements or standards. Appropriate accommodations should enable individuals with disabilities to reach these standards.
The Disclosure Dilemma
Unlike individuals who have apparent disabilities, those with hidden disabilities often have a choice about whether or not to disclose their disabilities. This is a personal and challenging decision that many individuals with hidden disabilities face both in the workplace and in educational settings.
The ADA states that reasonable accommodations must be provided to an individual with a known disability. Therefore, if someone with a hidden disability needs a reasonable accommodation, they must make their disability known, and in most cases must also produce documentation to substantiate the disability and the need for the accommodation.
If there is no need for an accommodation, there is typically no need for disclosure. Some individuals choose not to disclose their disabilities for fear of being stigmatized, ostracized, or discriminated against in a variety of ways.
However, when accommodation is needed, disclosure must take place. An individual who is having trouble performing at work can not wait until an employer takes some form of disciplinary action and then try to invoke the protections of the ADA to reverse such actions (warnings, “write-ups”, termination). Reasonable accommodations do not have to be “retroactive.”
Medical Documentation
When an individual asks for an accommodation or a modification, employers and educational entities have the right to request certain medical documentation. Only relevant documentation can be obtained, sufficient to indicate that the individual has an ADA-protected disability and to explain why the accommodation is necessary. It is usually not necessary to know an individual’s entire medical history.
To ensure that the documentation is accurate, employers and schools can require that it come from a qualified and appropriate health care or rehabilitation professional. The appropriate professionals will vary in different situations, but can include doctors, psychiatrists, psychologists, nurses, physical therapists, speech therapists, licensed mental health professionals, occupational therapists, or vocational rehabilitation specialists.
It is helpful to let medical professionals know exactly what information is needed, so irrelevant information is not provided. If an individual with epilepsy, who takes medication and needs to maintain a regular routine, has requested a schedule change at work, the employer does not need to know that the individual also experienced a back injury ten years ago.
Likewise, when seeking recommendations about reasonable accommodations, it is helpful to let the doctor know what kinds of tasks and duties are required in the job.
Confidentiality
Some individuals fear that an employer will disclose their personal medical documentation and therefore are hesitant to provide it. However, the ADA requires that any medical information be treated as a confidential medical record. This confidentiality provision covers all medical information, whether obtained through a reasonable accommodation request process, from a voluntary health or wellness program, or for any other reason.
The ADA also mandates that all medical documents be kept separate from an employee’s personnel file, and be kept secure.
There are certain exceptions, however. Medical information can be shared in limited circumstances, with first aid personnel, supervisors, or managers who may need to respond to certain situations, or to government officials who are investigating compliance with the ADA.
It is easy to understand why confusion still exists about hidden disabilities, reasonable accommodation, disclosure, medical documentation, and confidentiality. However, many resources are available to provide clarification and guidance on all of these subjects. By taking advantage of these resources, it is possible to successfully accommodate and include people with hidden disabilities at work and school.
RESOURCES
Job Accommodation Network (JAN) Equal Employment Opportunity Commission (EEOC) Cornell Program on Employment and Disability National Collaborative on Workforce and Disability for Youth (NCWD/Youth) Department of Education, Office of Civil Rights National Center for Learning Disabilities Boston University TRAINING NEWS AND EVENTS
Gala Silver Ball
This event, featuring live and silent auctions, celebrity auctioneers, dancing, and dining, will celebrate the 25th anniversary of the Disability Rights Education and Defense Fund (DREDF), as well as the 15th anniversary of the signing of the ADA.
Marian Vessels, Project Director
Nancy Horton, Assistant Director
Judy Sikes, Technical Assistance Specialist
Rachel Margolis, Technical Assistance Specialist
David Stewart, Technical Assistance Specialist
Mark Derry, Training Consultant
Traci Lemon, Office Manager
451 Hungerford Dr., Suite 607
Rockville, MD 20850 4151
TEL: 301 217 0124 V/TTY
FAX: 301 217 0754
Toll-free: 800 949 4232 V/TTY
E-mail: adainfo@transcen.org
URL: www.adainfo.org
© 2005 by TransCen, Inc.
Mario has diabetes and must abide by a very strict dietary regimen; he is restricted in the activity of eating.
Rhonda experiences depression and is often limited in her ability to concentrate.
Jane’s dyslexia makes it very difficult for her to learn.
800-526-7234 V/TTY 
www.jan.wvu.edu
JAN provides individualized accommodation solutions for both employment and educational situations.
800-669-4000 Voice 800-669-6820 TTY
www.eeoc.gov/types/ada.html
The EEOC offers a variety of information and investigates complaints under title I of the ADA.
Tips for HR Professionals
www.hrtips.org
This site offers a series of user-friendly fact sheets.
877-871-0744 www.ncwd-youth.info/
This organization offers a new “Quick Reference Guide” to Hidden Disabilities in the “Resources and Publications” section.
800-421-3481 V 877-521-2172 TTY
www.ed.gov/policy/rights/guid/ocr/disability.html
This office provides information and investigates complaints against educational entities that are subject to title II of the ADA (state and local governments) and/or the Rehabilitation Act.
888-575-7373 www.ncld.org/
This organization provides helpful information for both professionals and individuals.
Center for Psychiatric Rehabilitation
Reasonable Accommodations for People with Psychiatric Disabilities: An On-line Resource for Employers and Educators
www.bu.edu/cpr/reasaccom/
Union Station, Washington, DC: July 26, 2005
or e-mail ellen@nataliepshear.com
Annual ADA Update
Holiday Inn - BWI Airport, Linthicum, MD: October 28, 2005
SAVE THE DATE for this popular event which features updates from Federal agency representatives and ADA & IT Information Center staff.
1-800-949-4232 V/TTY (in DC, DE, MD, PA, VA, WV); 301-217-0124 V/TTY
or e-mail adainfo@transcen.org
New Web Course: Employment, Education, Advocacy
Partners in Policymaking has developed three new online courses. These self-paced courses are absolutely free.
Partners in Employment is designed to help people with developmental disabilities learn practical skills needed to find meaningful jobs. This course takes about six hours to complete.
Partners in Education is designed to help parents of children with developmental disabilities better understand and maximize the benefits of special education services and inclusion for their children. This course takes about six hours to complete.
Making Your Case explains how to communicate with public officials by effectively telling a personal story, writing a letter, providing testimony, and communicating in positive ways. It takes about three hours to complete this course.
Visit www.partnersinpolicymaking.com/
For information on these and other ADA, IT, and disability-related training events, check the “Training” page at the ADA & IT Information Center
web site:
www.adainfo.org/training
ACCESSIBLE WEB SITE CONTEST: Winners Announced
The Mid-Atlantic Accessible Education-Based IT Consortium announced the winners of the second annual web accessibility contest. Congratulations!
1st Place: Calvary Christian Academy, MD
2nd Place: Fairfax County Public Schools, VA
3rd Place: Goochland County Public Schools, VA
4th Place: Galileo Magnet High School, VA
4th Place: Cab Calloway School of the Arts, DE
5th Place: Arlington Public Schools, VA
Good efforts were also made by the other entrants around the region: Creeds Elementary (VA), Southampton Middle School (VA), Polytech High School (DE), William Henry Middle School (DE), Major George S. Welch Elementary School (DE), Prince William County Public Schools (VA), Frankford Elementary (WV), Pulaski Intermediate School (DE), and Moniteau High School (PA).
Thanks to all who participated!
TO CONTACT OUR AFFILIATES:
State ADA Coalitions:
MD – 800-949-4232 V/TTY
E-MAIL - adainfo@transcen.org
DC - 202-388-0033 or 202-388-0277 TTY
E-MAIL – hgalmore@dccil.org
DE - 302-376-4399 v or 302-376-4397 TTY
E-MAIL – vsiefert@fcilde.org
WV - 800-946-9471 V/TTY
E-MAIL - ADAcoalition@aol.com
VA - 757-461-8007 V or 757-461-7527 TTY
E-MAIL - kgonzalez@endependence.org
PA - 570-327-9070 V or 570-327-5254 TTY
E-MAIL - communityorganizer@cilncp.org
State Assistive Technology Programs:
MD - 800-832-4827 V or 866-881-7488 TTY
WEB - www.mdtap.org
DC - 202-547-0198 V or 202-547-2657 TTY
WEB - www.atpdc.org
DE - 800-870-3284 V/TTY (IN STATE ONLY)
WEB - www.dati.org
WV - 800-841-8436 V/TTY (IN STATE ONLY)
WEB - www.cedwvu.org/programs/wvats
VA - 800-552-5019 V/TTY (IN STATE ONLY)
WEB - www.vats.org
PA - 800-204-7428 V/RELAY (IN STATE ONLY)
WEB – http://disabilities.temple.edu/programs/assistive/index.htm
Farewell
Claire Elyse Michaels, of Allentown, Pennsylvania, died May 4, 2005. Claire worked at the Lehigh Valley Center for Independent Living and served on the ADA & IT Information Center’s Advisory Board. She was also a chaplain who, together with her service dog Jazz, responded with the National Emergency Response Team to Oklahoma City in 1995 and to the Pennsylvania, D.C. and New York areas on September 11, 2001. Claire was also involved in a broad range of other community activities, and will be remembered as a dear friend, colleague, mentor, and advocate.
ADA RULINGS
THIRD CIRCUIT DECISIONS
No Monetary Damages for Prison Inmate
The Third Circuit Court of Appeals (which includes the states of Pennsylvania, Delaware, New Jersey, and the Virgin Islands), decided the case of Cochran v. Pinchak. The court held that the 11th amendment, which protects states’ immunity except in limited circumstances, precludes a prison inmate with a disability from recovering monetary damages from a state for certain alleged violations of title II of the ADA.
Mr. Cochran, who is legally blind, alleged that he was denied the use of several aids (a cane, talking book equipment, a talking watch, and a lock he could use to secure his belongings) while he was an inmate in two New Jersey facilities.
The court referred to the recent Tennessee v. Lane case, wherein the Supreme Court ruled that title II was an appropriate exercise of Congressional power in “cases implicating the fundamental right of access to courts.” The Third Circuit found that this case presented a “different scenario.” Unlike Lane, where the claims were related to the right to due process, Mr. Cochran’s claims were related to the right to equal protection.
The court did not find that the prison’s actions violated the Equal Protection Clause, since there may have been legitimate safety reasons for the prison to deny the inmate the use of some of the devices in certain circumstances.
Both the majority and a dissenting opinion are posted online at
www.ca3.uscourts.gov/opinarch/021047p.pdf
District Court Decision Vacated in Community Integration Case
The Third Circuit Court of Appeals, in the latest in a line of cases where institutionalized individuals sought community placements, remanded the case of Pennsylvania Protection and Advocacy v. the Pennsylvania Department of Public Welfare. The state again relied on the “fundamental alteration” defense, claiming that community placements would alter budgetary allocations. The court, referring to its recent decision in the “Frederick L.” case, noted that budgetary constraints alone do not support a fundamental alteration defense. If changing a program in any way can be characterized as a fundamental alteration, the court said “...the fundamental alteration defense would swallow the integration mandate whole.”
Find the court’s opinion online at www.ca3.uscourts.gov/opinarch/031461p.pdf
Custodian Wins Reversal
The Third Circuit Court of Appeals reversed the lower court’s dismissal of the case Emory v. AstraZeneca Pharmaceuticals LP.
Mr. Alvin “Rob” Emory claimed that during his 27-year custodial career at AstraZeneca he was repeatedly denied reasonable accommodations and opportunities for promotions.
The U.S. District Court of Delaware decided that Mr. Emory, who has cerebral palsy, did not have a disability as defined by the ADA, since he had achieved high school graduation (through special education), employment, and various types of community participation.
The Appeals Court, however, found that the lower court focused on Mr. Emory’s achievements but ignored “ample” evidence of his substantial limitations in learning and performing everyday manual tasks.
Said the Court, “When evaluating claims brought under the ADA, ‘the focus is not on whether the individual has the courage to participate in the major life activity despite [his] impairment, but, rather, on whether [he] faces significant obstacles when [he] does so.’”
The case will be returned to the lower court for further proceedings. The opinion is posted online at www.ca3.uscourts.gov/opinarch/034751p.pdf
Expanding Your Market: Customers with Disabilities Mean Business
The U.S. Department of Justice believes that compliance with the ADA makes good business sense. This new publication, which includes demographic and financial information, illustrates how businesses can benefit by welcoming customers with disabilities. Find the document online at www.ada.gov/busstat.htm
ADA Video Gallery
The U.S. Department of Justice’s web site now includes an “ADA Video Gallery”. Videos are available for both dial-up and high-speed connections. Each is equipped with either captions or audio descriptions. Visit www.ada.gov/videogallery.htm
10 Small Business Mistakes discusses common mistakes that small businesses make when trying to comply with the ADA and presents the value of doing business with 50 million people with disabilities. The video features statements by store owners expressing their doubts or misunderstandings about the ADA, followed by explanations from Assistant Attorney General R. Alexander Acosta and other Department of Justice employees.
ADA Signing Ceremony documents the speech given by President George H. W. Bush when he signed the ADA into law on July 26, 1990. In the video, President Bush speaks to a huge audience of activists, Congressional supporters, people with disabilities, and their families and friends gathered on the south lawn of the White House. The 22-minute film was provided to the Department by the George Bush Presidential Library.
Accessible Mediation
The U.S. Equal Employment Opportunity Commission (EEOC), the National Council on Disability (NCD), and the U.S. Department of Justice (DOJ) jointly released two new publications on how to ensure that mediation of equal employment opportunity disputes is accessible to people with disabilities.
Questions and Answers for Mediation Providers: Mediation and the Americans with Disabilities Act and Questions and Answers for Parties to Mediation: Mediation and the Americans with Disabilities Act address the obligations of both private and public sector mediation providers and participants. Information is included on:
Types of reasonable accommodations that may be necessary to make mediation accessible to people with disabilities;
Best practices for ensuring that mediation is accessible;
The confidentiality of medical information disclosed during mediation; and,
Recommended types of ADA training for mediators.
Find the documents online at www.ada.gov/mediation_ta.htm
Local Services for Deaf, Hard of Hearing, and Deaf/Blind Victims of Domestic Violence and Sexual Assault
The Abused Deaf Victims Advocacy Network (ADVAN), in conjunction with Laurel House, provides services in Southeastern Pennsylvania. 24-hour toll-free hotline for shelter and domestic violence services: 1-800-642-3150 or 1-888-883-0770 (TTY). www.laurelhouseonline.org/advan.htm
The Deaf Abused Women’s Network (DAWN) provides services in the Washington, DC metro area.
24-hour hotline: 1-866-290-DAWN (3296) TTY; leave your name and phone number and a Volunteer Advocate will call you back. www.deafdawn.org/
If you are not able to obtain online publications,
call the ADA & IT Information Center,
1-800-949-4232 V/TTY.
We will be happy to assist you!
WEB SITES
www.sci-health.org/ The Rehabilitation Research and Training Center (RRTC) on Secondary Conditions in Individuals with Spinal Cord Injury (SCI) launched this web site to provide information about the prevention of secondary conditions through an active and healthy lifestyle.
www.ncpad.org/ The National Center on Physical Activity and Disability (NCPAD) promotes physical activity to enhance health and wellness for people with disabilities. The site offers information and resources on nutrition, adaptive products, sports, and recreation.
www.ojp.usdoj.gov/ovc/help/disabled.htm The Office for Victims of Crime in the Department of Justice offers “Help for Victims with Disabilities” pages that include a searchable database of print and multimedia products and training programs for service providers in the disability and victim advocacy fields.
www.congress.org/ This site from Capitol Advantage includes information on legislation and the political process, as well as directories of national, state, and local elected officials and media resources.
http://4teachers.org This site, available in either English or Spanish, offers resources to help teachers integrate technology into the classroom. Information is included on diversity, equity, and disability issues. (Note no “www” in this URL.)
ADA & IT In Focus is intended for use by individuals, state and local governments, businesses, legal entities, and others interested in developments in the Americans with Disabilities Act. This publication is intended solely as an informal guidance and should not be construed as legally binding. ADA & IT In Focus does not serve as determination of the legal rights or responsibilities under the ADA for any individual, business or entity.
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