ADHD & Your Legal Rights in the Workplace
If you have ADHD, then it’s time to learn more about your rights are in the workplace and what accommodations might be necessary to help make you successful. An employment attorney explains the laws put in place to protect you.
If you think that people with attention deficit hyperactivity disorder (ADHD) have certain rights that protect them in the workplace, you’re absolutely correct. But just what are these rights? How do you make the most of them? Carl Sherman, Ph.D., put these and other questions to 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 Adult Attention Deficit Disorder Association.
What protections exist for adults with ADHD?
For adults, the basic protection is the Americans with Disabilities Act, or ADA. This federal law, enacted in 1990, forbids companies with more than 15 employees from discriminating against disabled workers and requires these companies to make accommodations for these workers. These provisions may apply to some people with ADHD.
Suppose I work for a company that has fewer than 15 employees. Do I have any rights?
Possibly, but only under state anti-discrimination laws. In Pennsylvania, for example, you can sue if the company employs four or more people. In other states, there may not be much you can do to protect yourself.
You say that the ADA applies to “some people” with ADHD. How can I tell if I’m one?
Legally, “disability” means a physical or mental condition that significantly limits a major life activity –– in this case, work. So the key question is how profoundly you’re affected by ADHD. If your symptoms are well controlled, you probably aren’t disabled, in the legal sense. But if distractibility, poor time management, or other symptoms make it hard for you to work, you may be legally disabled.
It’s not enough for a physician or psychologist to give you a formal diagnosis of ADHD. He or she must indicate that your symptoms are severe enough to be considered disabling. If you meet these conditions, your employer is obligated by the ADA to talk with you about how the condition affects your ability to work, and to consider providing accommodations that will enable you to do your job.
So my boss has to do whatever it takes to make me able to work?
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.
What accommodations are unreasonable?
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, but I’ll work till seven.” 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.
Should I say, right off, “I have ADHD. You have to accommodate me”?
There’s no need to bring up ADHD until you have to. 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.”
What if my boss says no?
Consider hiring a coach to keep your work on track. And ask the boss again a few weeks later. But if your boss starts criticizing your work performance, it’s probably time to consult an employment attorney about the best way to reveal your ADHD. If you get fired before disclosing that you have ADHD, it will be difficult to make the case that you were the victim of disability discrimination.
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.
And the next step is “see you in court”?
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!