Yes. Whether you view attention deficit hyperactivity disorder (ADHD) as neurological — affecting how the brain concentrates or thinks — or consider ADHD as a disability that impacts working, there is no question that the federal Americans with Disabilities Act (ADA) covers individuals with ADHD.
Yes. Whether you view attention deficit hyperactivity disorder (ADHD) as neurological — affecting how the brain concentrates or thinks — or consider ADHD as a disability that impacts working, there is no question that the federal Americans with Disabilities Act (ADA) covers individuals with ADHD. (Likewise, students with ADHD are protected by state and national laws guaranteeing them a free and appropriate public education.)
Adults with ADHD have certain rights that protect them in the workplace. But just what are these rights? How do you make the most of them? Here, we get legal answers from Robin Bond, a Philadelphia-based attorney, who has more than a decade of experience in employment law and who serves as an advisor to the national Attention Deficit Disorder Association.
For adults, the basic protection is the ADA. This federal law, enacted in 1990 and amended in 2008, forbids companies with more than 15 employees from discriminating against disabled workers and requires these companies to make accommodations for these workers.
The ADA is essentially a civil rights law that prohibits discrimination against individuals with “a physical or mental impairment that substantially limits one or more major life activities of such individual.” The law goes on to state that “major life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, bending, speaking, learning, reading, concentrating, thinking, communicating, and working.”
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However, the ADA does not apply to members of the armed forces. For employees of the executive branch of the federal government, federal contractors, and employees of programs receiving federal funds, the ADA does not apply. Instead, employees are protected by The Rehabilitation Act of 1973, which is very similar to the ADA and was the law upon which the ADA was originally based.
Note that the employer is not entitled to request full medical records, just what is needed to verify a diagnosis of ADHD and the need to accommodate it. Not all employers seek this formal confirmation of disability; many simply discuss with an employee the nature of their disability and the limitations they face as a result. This informal conversation would include a discussion of reasonable and effective accommodations.
Is My Employer Required to Provide Every Accommodation I Want?
Not quite. The law requires reasonable accommodations. These are things that don’t pose an undue hardship to the employer — things that aren’t outrageously expensive or burdensome to the business.
• Providing a quiet workspace
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It depends on the situation and the size of the company. What’s reasonable to expect from a multinational corporation might cause undue hardship for a small business. Let’s say you’re not a “morning person,” and that you say to your boss, “I need to come in at 10 a.m., but I’ll work until 7 p.m.” If the office does all of its business from 8 a.m. to 5 p.m., your request probably won’t fly. Given the demands of the business, it may not be reasonable. Or let’s say that the only way you can stay organized is to have your own secretary. If the company has a firm policy of one secretary for every three workers, that accommodation may also be seen as unreasonable.
It is up to the individual to reveal their ADHD. Often, you can get what you need without mentioning it. For example, you might say, “I’m really bothered by noise. I would be more effective and efficient if my office weren’t quite so close to the copier.”
However, an employee must reveal their ADHD to be covered by the ADA. Several courts have already ruled that, in these situations, lack of knowledge of the condition or of how the disability may affect the employee may be used as a legitimate defense for the employer.
Also, an employer or potential employer cannot ask questions about your medical or psychiatric history. The only exception is if an applicant asks for reasonable accommodation for the hiring process. If the need for this accommodation is not obvious, an employer may ask an applicant for reasonable documentation about the covered disability.
Consider hiring a coach to keep your work on track. And ask the boss again a few weeks later. If that isn’t practical or successful, talk with the company’s HR department. If that is not helpful and you want to take further action to ensure you receive accommodations, you can bring a claim before the appropriate agency.
If the employee’s claim is against a private employer with 15 or more employees, contact the federal U.S. Equal Employment Opportunity Commission (EEOC). If the EEOC dismisses the complaint or fails to take action within 180 days, the EEOC will issue the employee a “right to sue” letter, upon request, and then you may file a lawsuit within 90 days of the date of the notice.
If an employee is making a claim against a public entity, such as an arm of a state or local government, you can bring the complaint to the EEOC or the U.S. Department of Justice, which shares enforcement in these situations.
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An employee may have up to 300 days to file a charge if there is a state or local law that provides relief for discrimination on the basis of disability. However, to protect the employee’s rights, it is best to contact EEOC promptly if discrimination is suspected.
To file a charge of discrimination on the basis of disability, contact any EEOC field office, located in cities throughout the United States. To contact the EEOC, call (800) 669-4000 for more information.
Note: Many states and cities have prohibitions against employment disability discrimination and claims can be filed with either a city or state agency.
Should I Document the Whole Story?
That’s a good idea. Carry a notebook, and, when difficulties start, take notes: “The boss said I’d better not come late to the next meeting,” or “Jack made fun of my difficulty finding papers.” One thing you don’t want to do is enter your notes on a company computer — or leave them in your office.
That’s the last step. Negotiation is better than litigation and far less costly. The first thing is to sit down with your employer and try to work things out. Thus far, there have been only about a dozen cases in which an employee with ADHD sued his employer — and not one of these suits has been successful for the employee. Of course, the mere threat of legal action may be all that’s needed to get an employer to take your situation seriously. No employer wants to be the test case that leads to the first big ADHD employee victory!
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Piano Guidance
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