Your Workplace Rights with ADHD
ADHD is a protected disability, according to the Americans with Disabilities Act. Which means you may be eligible for work accommodations and protections from discrimination. Read on to learn whether you meet the ADA conditions, and what legal precedence is on your side.
What is the ADA?
The Americans with Disabilities Act, or ADA, was established by Congress in 1990. The purpose of the law is to end discrimination in the workplace and to provide equal employment opportunities for people with disabilities, like attention deficit hyperactivity disorder (ADHD or ADD).
What employers are covered by the ADA?
The ADA applies to businesses with 15 or more employees. This includes:
- private employers
- state and local governments
- employment agencies
- labor organizations
- and labor-management committees
Is ADHD included in the ADA?
Yes. The ADA provides for “mental” conditions or mental illnesses, but as with physical impairments, the diagnosis of a mental illness or mental impairment is not sufficient to qualify an employee for protection under the law.
The following conditions must be met for ADHD to qualify for coverage:
- It must cause significant impact or limitation in a major life activity or function
- The individual must be regarded as having a disability
- The individual must have a record of having been viewed as being disabled.
- The applicant must also be able to perform the essential job functions with or without accommodations to qualify as an individual with a disability under the meaning of the Act.
Can an employer or potential employer ask if I have ADHD?
No. Your employer or potential employer cannot ask questions about your medical or psychiatric history. An exception, however, 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 his/her disability.
Do I have to tell my employer that I have ADHD in order to be covered by the ADA?
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 an used as a legitimate defense for the employer.
What are reasonable accommodations?
An employer is required to provide a reasonable accommodation to a qualified applicant or employee with a disability unless the employer can show that the accommodation would be an undue hardship, such as being too expensive or creating other problems within the workplace.
Reasonable accommodations for an employee who has ADHD could include:
- job restructuring
- part-time or modified work schedules
- reassignment to a vacant position
- adjusting or modifying examinations, training materials, or policies
Can an employer lower my salary or pay me less than other employees doing the same job because I need a reasonable accommodation?
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.
I take medications for my ADHD. Do I still qualify for accommodations on the job?
The U.S. Supreme Court ruled in Sutton v. United Airlines, Inc., and again in Murphy v. United Parcel Service, Inc., that if a person has little or no difficulty performing any major life activity because s/he uses a mitigating measure, then that person will not meet the ADA’s first definition of “disability.” In other words, if you are vision impaired but can correct that impairment by wearing glasses, then you are not considered disabled. Likewise, if ADHD is successfully managed with medication, then it might be difficult to claim ADHD as an impairment.
What do I do if I think that I’m being discriminated against?
If you think you have been discriminated against in employment on the basis of your ADHD, you should contact the U.S. Equal Employment Opportunity Commission within 180 days of the alleged discrimination. You 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 your rights, it is best to contact EEOC promptly if discrimination is suspected.
You may file a charge of discrimination on the basis of disability by contacting 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.
What have employers been told about ADHD and the ADA?
An article published by the New York Law Journal was not very encouraging. It says, “As more employees learn that their work-related problems may be attributable to adult ADHD, some will likely seek protection from discrimination under the Act. Employers faced with these disability discrimination claims should institute a two-pronged defense.”
“First, the employer should force the employee to meet his burden of proving that he does in fact suffer from ADHD, and that the employee’s ADHD impairs a major life activity. If the employee successfully establishes that he is disabled within the meaning of the Act, the employer should argue that the employee is unable to perform the essential functions of his job. This argument will be aided if the employer can point to a written job description stating that general skills such as following instructions, completing tasks on time and getting along with others are essential functions of the employee’s particular position.”
“The symptoms of adult ADHD are such that they will likely prevent the employee from performing these essential functions. Therefore, employees who are terminated because of behavior attributable to adult ADHD will probably not be entitled to protection under the Act.”
Keep in mind that the above is a legal opinion and not law. Still, it would be to the benefit of both you and your employer to resolve this out of court.