What is the ADA?
The most important legal protection for workers with ADHD is the federal Americans with Disabilities Act (ADA). The ADA was originally passed by Congress in 1990 and amended in 2008 to expand and clarify its coverage.
The ADA is essentially a civil rights law that prohibits discrimination against individuals who have a “physical or mental impairment that significantly limits one or more of the individual’s major life activities.” 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.”
The ADA also has another section that goes into further detail about what is included in the legal definition of disability by listing the body systems that are affected, including the “nervous system.” [and] Brain systems…”
Is ADHD covered by the ADA?
Yes. Whether you view ADHD as neurological (affecting the brain’s ability to focus and think) or as a disability that affects work, there’s no question that the ADA covers people with ADHD.
[Get This Free Download: Choosing Your Best Career]
Courts, including the U.S. Supreme Court, initially applied the ADA very narrowly. Because this was not what Congress intended when it originally passed the law, Congress amended the ADA to clarify that the ADA should apply broadly and to change “the legal circumstances under which an individual must demonstrate an inappropriately severe impairment to be protected from discrimination under the ADA.”
The ADA Amendments Act of 2008 (ADAAA) currently provides that:
The ADA should be interpreted broadly to protect individuals. Someone may not be impaired in all activities, but may be impaired in one major life activity. Thus, if you have difficulty with a task at work, but are able to perform the task at home, you may still be eligible for ADA protection. The use of mitigating measures (medications, mobility devices, hearing aids, cochlear implants, prosthetic limbs) does not disqualify you from ADA protection. Regular eyeglasses and contact lenses are not covered under this section. Other measures, such as assistive technology, reasonable accommodations, services such as sign language interpretation, and learning-based behavior modification or adaptive modifications, also do not disqualify you from ADA protection. Individuals with intermittent conditions, such as epilepsy, diabetes, and multiple sclerosis, are protected if their impairment is considered to cause a disability in an “active” state.
Do ADA protections apply to all workers with ADHD?
To be covered by the ADA, people with ADHD must work in a workplace that employs 15 or more employees, although many cities and states have similar laws that cover smaller employers and independent contractors.
As an aside, the ADA does not apply to members of the military. Employees of the executive branch of the federal government, federal contractors, and employees of programs that receive federal funds are not covered by the ADA. Instead, employees are protected by the Rehabilitation Act of 1973, which is very similar to the ADA and is the law on which it is based.
[Read: The Real-Life Risks and Rewards of Disclosing ADHD at Work]
What are employee obligations and considerations?
First, an employee must be qualified for the job. Having a disability does not mean you will be fired or never hired. Employees must have the legitimate skills, experience, education, and other job requirements to be able to perform the essential functions of the job, with or without a reasonable accommodation. Requiring the ability to perform “essential” functions ensures that an employee cannot be disqualified simply because they cannot perform the marginal or peripheral functions of the job.
Job essentials vary by workplace and occupation. In some jobs, such as teaching, arriving to work on time is crucial. (If a teacher is late, who will cover their class?) But if you work in a design firm where you commute to an office or work from home, arriving at the office at a specific time may not be as important. Fields like healthcare or factory quality control have little room for inadvertent mistakes; others, less so. Employees can do their best if they understand how ADHD affects their work and choose fields and workplaces that value their strengths rather than their challenges.
Finally, employees should consider whether and when to disclose the fact that they have ADHD. Unlike someone who uses a wheelchair or has another “visible” disability, an individual with ADHD may choose not to disclose this information. If they choose not to disclose their diagnosis, employees cannot expect their employer to provide ADHD accommodations.
Do employees have to disclose that they have ADHD to be covered under the ADA?
Yes. Several courts have already ruled that in these circumstances, lack of knowledge of the disability condition or how the disability would affect the employee can be used as an employer’s valid defense.
Can an employer or potential employer ask if I have ADHD?
No. Your employer or potential employer cannot ask you about your medical or psychiatric history. The only exception is if an applicant requests a reasonable accommodation for the hiring process. If the need for this accommodation is not clear, the employer may require the applicant to provide reasonable documentation of a covered disability.
In most cases, this will be met with a doctor’s note confirming the diagnosis of ADHD and, ideally, listing the types of accommodations needed to create a “level playing field” in the workplace.
Please note that employers do not have the right to request an employee’s entire medical records, only the information necessary to confirm a diagnosis of ADHD and the need for accommodations. Not all employers require this formal confirmation of disability, and many employers will simply discuss with the employee the nature of the disability and any limitations they face as a result. This informal conversation will include a discussion of reasonable and effective accommodations.
When should an employee disclose ADHD?
There is no specific stage in the hiring process at which ADHD must be disclosed. Failure to disclose during the hiring process or at any point during employment does not forfeit an employee’s right to request an accommodation. However, if an employee does not disclose and is unable to meet job expectations because of their condition (because they would be working without an accommodation), the employee will not have any relief if they are disciplined or fired for that failure.
What is a reasonable accommodation?
Employers have a duty to provide reasonable accommodations to qualified applicants or employees with disabilities. Assume an employee has disclosed ADHD to the employer and has provided medical documentation or discussed with HR or management how ADHD affects them in the workplace. What accommodation would the employee ask for, and what accommodation would the employer provide? Employers are not required to provide an accommodation that is unreasonable or that would incur significant costs or disrupt business operations.
While what is reasonable will vary from job to job, some of the most common “reasonable” accommodations for ADHD include:
Provide a quiet work space Allow noise-canceling headphones or white noise Work from home some or all of the time Take allocated breaks as needed Minimize peripherals to help you stay focused on your essential job functions Allow assistive technology (timers, apps, calendars, etc.) Adjust or modify exams, training materials, or policies Reassign to vacant positions Restructure jobs
Can my employer reduce or decrease my pay because I need a reasonable accommodation?
No. An employer cannot compensate for the cost of providing a reasonable accommodation by lowering your salary or paying you a lower rate of pay than other employees in a similar position.
If I take ADHD medication, am I eligible for accommodations?
Yes. Additionally, other protections afforded by the ADA include accommodation for side effects of medications taken to treat the disability. If an employee is trying a new ADHD medication that causes lethargy or tics, the employee has the right to an accommodation from their employer to help them deal with the effects of the medication, such as working from home for a few days or providing a quiet room to lie down when they need a break. Remember, however, that the employee must still be able to perform the essential aspects of their job and must disclose to their employer that they are experiencing side effects from the medication.
What to do if you think you are being discriminated against?
What can an employee do if they believe their employer is violating the ADA or an equivalent local law? What remedies are available? Employees should start by discussing the issue with their manager, and if that is not practical or successful, they should talk to the company’s Human Resources department. If that doesn’t help and they want to take further action to ensure they receive the accommodations they are entitled to, they can file a complaint with the appropriate agency.
If an employee’s complaint is against a private employer with 15 or more employees, they should contact the U.S. federal Equal Employment Opportunity Commission (EEOC). If the EEOC denies the complaint or does not take action within 180 days, it will issue a “right to sue” notice at the employee’s request, allowing the employee to file a lawsuit within 90 days from the date of the notice.
If an employee has a claim against a public agency, such as a state or local government, the employee may file a complaint with the EEOC or the U.S. Department of Justice, which share enforcement responsibilities in these situations.
If there is a state or local law that provides remedies for discrimination on the basis of disability, an employee may file a complaint within up to 300 days. However, to protect your rights, we encourage you to contact the EEOC promptly if you suspect discrimination.
To file a claim of discrimination on the basis of disability, an employee may contact an EEOC field office located in any city throughout the U.S. To contact the EEOC, look in the “U.S. Government” section of the telephone directory, or call (800) 669-4000 for more information.
Keep in mind that many states and cities prohibit disability discrimination in employment, and claims can be filed with city or state agencies.
Accommodating ADHD in the Workplace: Next Steps
SupportADDITUDE
Thank you for reading ADDitude. Please consider subscribing to support our mission of providing ADHD education and support. Your support makes our content and outreach possible. Thank you!
Save previous post Save next post
Source link