ADHD at Work

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.

Statue of justice in front of legal books representing the legal right of people with ADHD
Statue of justice in front of legal books representing the legal right of people with ADHD

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.

Who decides?

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!

2 comments

  1. can anyone please help me? I am having difficulty at work. I work in the medical field as support to anesthesia providers. the operating room suit I work in is full of big egos from the providers. I have been spoke to by the supervisor regarding complaints from people who say I have an attitude over the phone. I tried to explain that its not attitude, and that I have some medical issues the have an impact on me, adhd, hearing loss from my days as a soldier, and a really private medical condition. the long and short of it is that now after 2.5 years there they tell me they need documentation so they have a record of my medical challenges. Now I am not ok with this. How does giving medical notes from my providers improve the situations of people passing judgment on me or how they interpret me when I am in hyper mode due to getting over whelmed? Do I by law have to provide this, can they deny me support service with out this. Keep in mind that this is from the supervisor not H R. Please anyone help me.

    1. From the EEOC:

      “May an employer ask an individual for documentation when the individual requests reasonable accommodation?

      Yes. When the disability and/or the need for accommodation is not obvious, the employer may ask the individual for reasonable documentation about his/her disability and functional limitations. The employer is entitled to know that the individual has a covered disability for which s/he needs a reasonable accommodation.

      Reasonable documentation means that the employer may require only the documentation that is needed to establish that a person has an ADA disability, and that the disability necessitates a reasonable accommodation. Thus, an employer, in response to a request for reasonable accommodation, cannot ask for documentation that is unrelated to determining the existence of a disability and the necessity for an accommodation. This means that in most situations an employer cannot request a person’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation. If an individual has more than one disability, an employer can request information pertaining only to the disability that requires a reasonable accommodation.

      An employer may require that the documentation about the disability and the functional limitations come from an appropriate health care or rehabilitation professional. The appropriate professional in any particular situation will depend on the disability and the type of functional limitation it imposes. Appropriate professionals include, but are not limited to, doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.

      In requesting documentation, employers should specify what types of information they are seeking regarding the disability, its functional limitations, and the need for reasonable accommodation. The individual can be asked to sign a limited release allowing the employer to submit a list of specific questions to the health care or vocational professional.

      As an alternative to requesting documentation, an employer may simply discuss with the person the nature of his/her disability and functional limitations. It would be useful for the employer to make clear to the individual why it is requesting information, i.e., to verify the existence of an ADA disability and the need for a reasonable accommodation.

      Example A: An employee says to an employer, “I’m having trouble reaching tools because of my shoulder injury.” The employer may ask the employee for documentation describing the impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee’s ability to perform the activity or activities (i.e., the employer is seeking information as to whether the employee has an ADA disability).

      Example B: A marketing employee has a severe learning disability. He attends numerous meetings to plan marketing strategies. In order to remember what is discussed at these meetings he must take detailed notes but, due to his disability, he has great difficulty writing. The employee tells his supervisor about his disability and requests a laptop computer to use in the meetings. Since neither the disability nor the need for accommodation are obvious, the supervisor may ask the employee for reasonable documentation about his impairment; the nature, severity, and duration of the impairment; the activity or activities that the impairment limits; and the extent to which the impairment limits the employee’s ability to perform the activity or activities. The employer also may ask why the disability necessitates use of a laptop computer (or any other type of reasonable accommodation, such as a tape recorder) to help the employee retain the information from the meetings.

      Example C: An employee’s spouse phones the employee’s supervisor on Monday morning to inform her that the employee had a medical emergency due to multiple sclerosis, needed to be hospitalized, and thus requires time off. The supervisor can ask the spouse to send in documentation from the employee’s treating physician that confirms that the hospitalization was related to the multiple sclerosis and provides information on how long an absence may be required from work.

      If an individual’s disability or need for reasonable accommodation is not obvious, and s/he refuses to provide the reasonable documentation requested by the employer, then s/he is not entitled to reasonable accommodation. On the other hand, failure by the employer to initiate or participate in an informal dialogue with the individual after receiving a request for reasonable accommodation could result in liability for failure to provide a reasonable accommodation.”

Leave a Reply