Wait, ADHD Is a Disability?

Is ADHD (attention-deficit/hyperactivity disorder) legally a disability? The answer is, of course, it depends. But that should be enough to make any employer concerned, especially when you consider that some estimate that 1 in 25 adults have some form of ADHD. In today’s Advisor, we’ll discuss what this means for your company.

There is some misunderstanding as to whether ADHD is considered a disability. The Americans with Disabilities Act (ADA) does not have an exhaustive list of medical conditions that are considered to be disabilities, but instead, the definition of a disability has been purposefully made broad under the United States Equal Employment Opportunities Commission’s (EEOC) Americans with Disabilities Act Amendments Act (ADAAA).

The EEOC defines a disability, in respect to an individual, as “a physical or mental impairment that substantially limits one or more of the major life activities of such individual.” Such a broad definition leaves a lot to be desired when it comes to nailing down whether ADHD is or is not a disability. So what does this mean for ADHD? It means that depending on the circumstances, ADHD can be considered either a disability or not a disability.

Want to make sure you’re compliant with the ADA? Read this free checklist from BLR, ADA Compliant Job Description Checklist. Download Here

Not the Answer I Was Looking For

Each case regarding ADHD must be decided individually during a “legal event” (lawsuit). For example, in Calef v. The Gillette Co., a worker with ADHD claiming a wrongful firing due to disability discrimination was found to be not disabled. In this case, the court found the employee did not have an impairment that substantially limited one or more of his major life activities, essentially because he had the same capabilities both before and after he was diagnosed and treated.

In another case, Wolfe v. Postmaster General, a worker was able to prove that he was wrongfully terminated. The employee was considered to have a disability at the time of his termination, and the ADAAA requires merely that the employer considers the plaintiff to have a disability for the Act to apply. The Act was applicable in this case because the employee had provided documentation about his ADHD to his employer before the trouble began.

So if you have an employee who has ADHD and you wonder if it’s considered a disability, remember, the only way to find out for sure is in court. Naturally, that should be avoided if at all possible.

Symptoms and Accommodations

If you are going to be interacting with an employee with ADHD, it’s important to know what you are dealing with. Adults who receive a diagnosis of ADHD as adults often find they are struggling with some of these issues:

• Poor ability to manage responsibilities such as household chores, paying bills, or organizing belongings;
• Chronic stress and worry due to failure to accomplish goals and meet responsibilities;
• Relationship problems due to not completing tasks, forgetting important things, and getting easily upset over trivial matters; and
• Chronic and intense feelings of frustration, guilt, or blame.

These struggles are only some of the symptoms of ADHD. Learning to recognize them as part of a disease rather than as destructiveness or unproductivity in the workplace can help you, as an employer, find a reasonable accommodation for these people.

When it comes to workplace accommodations, there are several that will help boost work performance in employees suffering from ADHD.

• Identify what time the employee is most alert and focused, and have him or her work on more difficult projects at that time.
• Consider allowing the employee to come in earlier or stay later in the workday when the office is quieter.
• Curb constant e-mail checking by the employee; the stimulation of e-mails can derail focus for someone with ADHD.
• Schedule weekly meetings with the employee to discuss goals and performance, or plan an informal chat about these issues.
• Encourage the employee to organize the work space, and create daily to-do lists.
• Allow the employee scheduled breaks for short walks outside in the fresh air.
• The most important accommodation is keeping lines of communication open and making adjustments when needed.

To learn more about ADHD and other common mental health disorders, visit BLR’s HR & Mental Health website.

Having trouble staying compliant with the ADA? Download the free checklist, ADA Compliant Job Description Checklist. Learn More

It’s Best if You Don’t Know

There are a few things about the ADA and ADAAA that can benefit the employer:

• • If you don’t know, you are not liable. If your employee or job candidate doesn’t mention that he or she has ADHD, it can’t be said you did not provide reasonable accommodation for him or her.

• Don’t ever ask. Based on the previous point, and for legal reasons, do not ask any employee or job applicant if he or she has a disability or condition. In other words, if you don’t want to know, don’t try to find out.

But What if I Do Know?

If your employee or potential candidate has told you that he or she has ADHD, things change a bit. At this point, your company is no longer entirely protected from legal action. This doesn’t mean you will be sued, it just means that it is now possible to be sued. So, it’s important to know the law.

In tomorrow’s Advisor we’ll discuss what happens when you find out that an employee or potential employee has ADHD. Also, an introduction to BLR’s free ADA Compliant Job Description Checklist.