The Employer’s Guide To AD/HD Under The ADA
Published by Eric A. Welter and Sarah Tudor Glaser on January 22, 2018
AD/HD can pose significant challenges for employees in the workplace. Under certain circumstances, an employee’s AD/HD may rise to the level of a disability covered under the ADA (and ADAAA). This post addresses these issues and discusses how best to engage in the interactive process after a request for accommodation due to AD/HD.
More likely than not, you have heard of AD/HD before, which is a common, chronic condition that can include attention difficulty, hyperactivity, and impulsiveness. AD/HD is also commonly called ADD, which is actually one of three subtypes of AD/HD. It often begins in childhood, and can continue into adulthood. For some, it may not be diagnosed until well into adulthood and can significantly affect an employee’s ability to perform their job.
Is AD/HD a disability covered under the ADA?
The answer depends on the person and their symptoms. The ADA does not have a list of conditions that fall under the definition of a “disability”. Instead, whether a condition is a disability or not depends on whether it “substantially limits one or more major life activities”. For some, AD/HD has this effect. For others, it does not, possibly because they are being treated for it or because they have learned coping mechanisms. AD/HD can be a covered disability under the ADA and if an employer receives a request for accommodation based on AD/HD, the law requires that they enter into the interactive process.
Remind me how that works?
An employee in need of an accommodation for AD/HD must come to you and let you know that they need an adjustment or change at work for a reason related to a medical condition. They do not need to mention the ADA or use the phrase “reasonable accommodation,” but they do need to indicate that their request is due to a medical condition.
If an employee indicates that they need an accommodation due to AD/HD, the ADA requires that you enter into the interactive process. The interactive process is a back and forth dialogue with the employee during which you should obtain more information about their condition and the restrictions it imposes so that you can evaluate the accommodation request.
You can obtain more information by requesting documentation from the employee’s medical provider. You should ask for documentation confirming the existence of a disability, the employee’s limitations or restrictions that require an accommodation, and potential accommodations. Perhaps the documentation will indicate that the employee needs a quiet space in order to concentrate on their work or a change in the way work is assigned to them.
After you receive the documentation, you should have a conversation with the employee to identify the appropriate reasonable accommodation. You can start by asking the employee what they think would be the best accommodation, but know that you are not required to offer the accommodation of the employee’s choice if there is another accommodation that would enable them to perform the essential functions of their job.
What are the limits of a reasonable accommodation?
You do not need to provide an accommodation that would cause undue hardship. That being said, if the employee identifies an accommodation that you believe would cause undue hardship, you should not end the conversation there. You can ask the employee if they can think of another accommodation that would work, and you can also suggest your own.
A reasonable accommodation does not have to eliminate an essential job function. It also does not have to allow the employee to perform their job at a lower productivity or skill level. The point of an accommodation is to enable the employee to perform their essential job functions, not to take them away.
What are some reasonable accommodations for AD/HD that may be appropriate?
As a general matter, you should allow the employee to suggest an accommodation that would help them; however, if you are struggling to come up with something or the employee’s suggestion is not feasible, the following is a list of accommodations that may help (provided they do not result in an undue burden): reduction of number of assignments given at one time, materials to assist in keeping track of assignments like checklists, a change in the way assignments are given (via email or in person), a transfer to another position, the ability to wear headphones, assignment to a desk or office in a quiet location, the right to shut their door, a change in schedule, or a medical leave of absence.
What if I see an employee struggling and suspect it is due to AD/HD?
Deal with the performance issues first. If the employee is struggling to get their work done, have a conversation about the fact that their work is not timely and address the need for a resolution to that problem. You can ask them if there is anything the Company can do to help them with their performance issue. This opens the door for them to request an accommodation and begin the interactive process. If they do not say anything, continue to address the performance issues. You should refrain from specifically asking them if they have a medical condition, however, if they do bring up a medical condition obligations to engage in the interactive process are triggered.
AD/HD can have a significant impact on an employee’s work product and for many is a covered disability under the ADA. If you receive a request for accommodation for AD/HD, enter into the interactive process with the employee to determine whether a reasonable accommodation exists.Topics: Accommodation, AD/HD, ADA, ADA Requirements, Americans with Disabilities Act, Disability Accommodations and Access, Financial Services, Government Contracting, Healthcare, Hospitality, Media & Entertainment, policies, Procedures and Employee Handbooks, Reasonable Accommodation, Retail, Technology, Transportation