"One of my employees is bright but performs far below his potential. Would it be okay for me to encourage him to get tested for ADD?"
by Robin Bond, Esq.
This is probably not a good course of action, your good intentions notwithstanding.
The American with Disabilities Act (ADA) prohibits discrimination in employment on the basis of disability and limits the circumstances under which an employer may ask about an employee's medical condition or require the employee to undergo a medical exam. Under this law, a perceived disability is just as "real" as an actual disability. That is, even if your employee ultimately was not diagnosed with ADD, your perception of him as a person with a disability would entitle him to protection under the ADA. In these circumstances, the Equal Employment Opportunity Commission (EEOC) cautions employers against making such inquiries because "poor job performance may be unrelated to an intellectual disability."
Anytime you have a problem with an employee that might involve a question of state or federal law, your first step should be to consult your company attorney and/or head of human resources. Ask if they would support having a presentation at your staff meeting where employees learn about the ADA and how that law is designed to allow employers to help workers with disabilities achieve their potential.
For more about AD/HD under the ADA, visit the Equal Employment Opportunity Commission online.