The most important legal protection for workers with ADHD is the federal Americans with Disabilities Act, or ADA. The original version of the ADA was passed by Congress in 1990 and was amended in 2008 to expand and clarify its application.
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.”
There is also a separate section of the ADA that further discusses what is included in the definition of disability under the law by listing the bodily systems that are affected, which include: “neurological [and] brain systems…”
Yes. Whether you view 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 ADA covers individuals with ADHD.
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Courts, including the U.S. Supreme Court, initially applied the ADA quite narrowly. This was not what Congress had intended when it first passed the law, so it amended the ADA to clarify that it should be broadly applied and to change the “legal environment in which individuals must demonstrate an inappropriately high degree of functional limitation in order to be protected from discrimination under the ADA.”
The 2008 ADA Amendments ACT – the ADAAA – now provides the following:
- The ADA should be interpreted broadly, in favor of providing protections to individuals.
- Someone can be disabled in one major life activity without being disabled in all activities. So, someone can have difficulty with work tasks and qualify for ADA protection, even if they can handle tasks at home.
- The use of mitigating measures – medications, mobility devices, hearing aids, cochlear implants, and prosthetics — do not disqualify someone for protection under the ADA. But ordinary glasses and contact lenses are not covered by this section.
- Other measures, including assistive technology, reasonable accommodations, services such as a sign language interpreter, or learned behavioral or adaptive modifications also don’t disqualify someone for ADA protections.
- Individuals with episodic conditions, such as epilepsy, diabetes, or multiple sclerosis are protected if their impairments are considered disabling in their “active” state.
To be covered by the ADA, an individual with ADHD must work in a setting that employs more than 15 people. However, many cities and states have laws that mirror the ADA and cover smaller employers and even independent contractors.
As an aside, 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.
[Read: The Real-Life Risks and Rewards of Disclosing ADHD at Work]
First, the employee must be qualified for the job. Just because they have a disability does not mean that they are protected from being fired – or not hired in the first place. They are obligated to meet the legitimate skill, experience, education, or other job requirements and be able to perform the essential functions of the position with or without reasonable accommodation. Requiring the ability to perform “essential” functions assures that they will not be considered unqualified simply because of their inability to perform marginal or incidental job functions.
What is essential to a job will differ from workplace to workplace and position to position. Getting to work on time is a crucial part of some jobs, like teaching. (Who will cover a teacher’s class if the teacher is late?) But if an individual worked in a design firm where people came and went from the office or even worked from home, getting to the office at a particular time might be far less important. Some fields, like medicine or quality control in a factory, are unforgiving of mistakes due to inattention. Others will be less so. Employees will do best if they understand how ADHD affects their work and choose a field and a workplace that values their strengths and not their challenges.
Finally, employees must consider whether or when to disclose the fact that they have ADHD. Unlike an individual who uses a wheelchair or has another “visible” disability, someone with ADHD may decide not to disclose this information. If they choose not to disclose their diagnosis, the employee cannot expect his employer to provide ADHD accommodations.
Yes. 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.
No. Your 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.
Most often a note from a doctor confirming an ADHD diagnosis and, ideally, noting the kinds of accommodations needed to “level the playing field” at work will meet this requirement.
Note that the employer is not entitled to request the employee’s 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.
There is no specific stage in the employment process when ADHD disclosure is required. An employee does not lose the right to request accommodations by not disclosing during the hiring process or at any point during employment. However, if an employee does not disclose and fails to meet job expectations because of the condition (since the employee would be working without accommodations), that employee will not have recourse if penalized or fired because of such failure.
An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability. Let’s assume that an employee has disclosed her ADHD to her employer and provided medical documentation or discussed with HR or management how ADHD affects her in the workplace. What kinds of accommodations might she seek and might her employer provide? Note that the employer is not required to provide accommodations that are unreasonable – or that may incur substantial costs or be disruptive to the business.
What is reasonable will differ from job to job, but some of the most common “reasonable” accommodations for ADHD include the following:
- Providing a quiet workspace
- Allowing noise-canceling headphones or white noise
- Working from home some or all of the time
- Taking allotted breaks as needed
- Minimizing marginal functions to allow focus on essential job duties
- Allowing assistive technology (timers, apps, calendars, etc.)
- Adjusting or modifying examinations, training materials, or policies
- Reassignment to a vacant position
- Job restructuring
No. An employer cannot make up the cost of providing a reasonable accommodation by lowering your salary or paying you less than other employees in similar positions.
Yes. In addition, some other protections afforded by the ADA include accommodating side effects from medication taken to treat a disability. If an employee were trying a new ADHD medication that induced lethargy or tics, he would be entitled to accommodations from his employer – perhaps a few days of working from home or a quiet room where he could lie down when he needed a break — to enable him to deal with the effects of his medication. Remember, he still needs to be able to perform the essential aspects of his job and will have to disclose to his employer that he is having side effects from medication.
What can an employee do if they believe their employer is violating its obligations under the ADA or its local equivalent? What remedies does they have? The employee should certainly begin by discussing the issue with their supervisor and, if that isn’t practical or successful, with the company HR department. If that is not helpful and they want to take further action to ensure they receives the accommodations to which they are entitled, they can bring a claim before the appropriate agency.
If the employee’s claim is against a private employer with 15 or more employees, they should 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 the employee 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, they can bring the complaint to the EEOC or the U.S. Department of Justice, which shares enforcement in these situations.
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, an employee may contact any EEOC field office, located in cities throughout the United States. To contact the EEOC, look in your telephone directory under “U.S. Government.” You can also call (800) 669-4000 for more information.
Remember, many states and cities have prohibitions against employment disability discrimination and claims can be filed with either a city or state agency.
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