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SECTION 504 OF THE ADA AND ADULTS WITH LEARNING DISABILTIES David Gotthelf, Ph.D. What Does the ADA mean to employers and to employees? Signed into law in 1990, the Americans with Disabilities Act, or ADA, requires that all employers provide reasonable accommodations to employees who are identified as having a disability. Under ADA, a disability may include individuals who have a learning disability or a problem with attention (ADHD). Such individuals may be entitled to an accommodation plan under Section 504 of the ADA. The Office for Civil Rights monitors compliance with these plans as well as regarding any other accommodations that are necessary under the ADA. The purpose of this article is to help employers understand these obligations, particularly regarding how they apply to individuals with learning or attention issues. Under ADA, individuals may qualify for a Section 504 accommodations plan if both of the following criteria are met: 1. The individual has a diagnosed disability. Unfortunately, the law is not at all clear as to what “substantially” means. Not only is the term not defined, but caselaw and regulations require schools and employers to meet different standards. In making a determination as to whether an employee is eligible for ADA accommodations, employers should use a combination of diagnostic evidence, common sense, and recognition that with relatively little effort, an employee's knowledge and enthusiasm would more than compensate for any costs of the accommodations provided. What are the definitions of learning and attentional disabilities “Learning Disability” or “Attention Deficit Disorder” are not terms reserved for only children and adolescents. Despite significant advances in diagnosis and in educational techniques that have been developed for students, most individuals grow into adulthood with some degree of their learning or organizational issues still affecting their performance. More problematically, many adults have learning disabilities that have never been properly diagnosed. A good number of these adults could be more successful on the job with appropriate accommodations, most of which cost relatively little or are of no cost to their employer. Learning disabilities comprise a number of specific disorders, many of which are used in general conversation interchangeably. But not all learning disabilities are alike. The following definitions are taken from either special education regulations or from clinical references. Remember, not everyone agrees with the specifics of each definition, but they generally describe the issues an employee may have. Specific Learning Disability: A disorder in understanding or in using language, spoken or written, which may manifest itself in an imperfect ability to listen, think, speak, write, spell or to do mathematical calculations. (IDEA definition) Dyslexia (disorders of reading) - The individual has average to above average intelligence, but has deficits in visual, auditory, or motor process which interfere with reading and reading comprehension. Dysgraphia (disorders of writing) - The person has average to above average intelligence but shows deficits in writing. Deficits may include lack of organization, clarity, unity, fragmentation of written concepts, mechanical errors, reversals, transpositions, and omissions of letters or words. Spelling may be poor, handwriting may be illegible, and written ideas may be disorganized and incomprehensible. Dyscalculia(disorders of arithmetical calculation) - The individual has average to above average intelligence but has difficulty with numbers or remembering facts over a long period of time. Some persons have spatial problems and difficulty aligning numbers into proper columns. Some persons may reverse numbers, and have difficulty in mathematical operations. Dyspraxia (disorders of muscle coordination) - has problems with messages from the brain being properly transmitted to the body; though the muscles are not paralyzed or weak, they have problems working well together; might cause speech problems as well as poor posture, poor sense of directions &/or difficulty with actions such as throwing and catching. Auditory Processing Disorder - Difficulty in receiving accurate information from the sense of hearing; there is no problem with their hearing, just in how the brain interprets what they hear; might have problems with understanding and remembering oral instructions, differentiate between similar sounds, or hearing one sound over a background noise. Visual Perceptual Disorder - Difficulties receiving and/or processing accurate information from their sense of sight; might have a problem picking out an object from a background of other objects or seeing things in correct order. Attention Deficit/Hyperactivity Disorder - Known by a variety of acronyms, including ADD, ADHD, AD/HD, this disorder is not simply the description of someone who is overwhelmed with work or responsibilities. It is a legitimate difficulty that is manifested in childhood and often persists into adulthood, albeit in a less active form. There are at least six diagnostic symptoms of either inattention or hyperactivity-impulsivity that must be present in order for the diagnosis to be made, and the symptoms must have been present for at least six months and considered maladaptive and inconsistent with developmental level. They include, but not limited to, failure to give close attention to details, easy distraction by extraneous stimuli, forgetful of daily activities and responsibilities, fidgetiness, often interrupts or intrudes on others, and often talks excessively. What questions should be asked when considering accommodations? Once a diagnosis has been established and a determination made that it is substantially affecting a life activity, both employer and employee need to consider a number of questions in determining what accommodations would be needed. The following questions are related to the individual employee: 1. What are the individual's job duties?
4. How can the deficit be compensated? (This is where an accommodation(s) will be considered.) The following questions are related to the workplace: 1. What is the physical layout of the workplace? What are some examples of accommodations that can be applied to an eligible employee? Accommodations should be considered on a case-by-case basis. A reasonable accommodation need not be the best accommodation available, as long as it is effective for the situation. Federal regulations provide examples of common types of reasonable accommodation that an employer may be required to provide, but different types of accommodations may be used when deemed appropriate. Employers may consider the following general accommodations, all of which are taken from the ADA Technical Assistance Manual, (Title I, Section 3):
Employers may consider the following specific accommodations for individuals diagnosed with learning disabilities and/or AD/HD: Deficits in Reading 1. Recording for the Blind-books on
tape (Persons with LD qualify for this service) Deficits in Writing 1. Personal computers/laptop computers Deficits in Mathematics 1. Fractional, decimal, statistical,
scientific calculators Deficits in Organizational Skills, Memory, and Time Management 1. Day Planners Managing the Physical Environment 1. Room enclosures/cubicles to reduce
auditory and visual distractions Resources and References: There are a number of resources available in both printed form and on the internet. The most comprehensive website is the Job Accommodation Network, (JAN), a site that is devoted to helping employers with appropriate accommodations for employees under ADA. JAN is a service of the Office of Disability Employment Policy of the U.S. Department of Labor. The JAN website also gives a number of specific examples of accommodations that have been submitted to the site by employers or employees. The telephone number of JAN is 800-526-7234 (V/TTY), and the website is http://www.jan.wvu.edu. Much of what is presented above is from the JAN site, with credit given to Mayda LaRosse, M.A, for her organization of the material. Another helpful site is the Learning Disabilities Association of California. This site lists a number of books and other publications that address learning disabilities in adults. |
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