Highlights:

• Employers must engage in an interactive dialogue with employees to assess possible accommodations when a request for accommodation related to ADHD is signaled.
• Confidentiality is crucial throughout the accommodation process to avoid legal exposure.
• Employers should provide resources to help employees understand the process and comply with legal requirements.

 

“We see the most risk is when an employee first signals a need for accommodation to a lower-level manager or someone outside an organization’s human resources (HR) or legal function. If that supervisor responds improperly, fails to keep the request confidential, or does not escalate the request on time, the organization could face liability. Because there is still a prevalent stigma around these issues, it only heightens the risk,” said Peter John Veysey, Of Counsel, Nelson Mullins.

In the second part of the interview, Peter John focuses on the effective management of employee accommodation requests, with a specific emphasis on addressing attention-deficit/hyperactivity disorder-related or ADHD-related issues in the workplace. He provides valuable insights, strategies, and practical guidance for employers to create inclusive environments that support individuals with ADHD and promote their productivity and well-being

Excerpts from the interview:

Q: Can you discuss the reasonable accommodation, verification, and confidentiality issues that arise when employers receive requests for accommodation related to ADHD?

Peter John: If an employee adequately signals that they may need reasonable accommodations for a protected disability – again, this is not always a direct request – the employer must begin an interactive dialogue with the employee to assess possible accommodations. Employers must engage in this process in the right way to avoid any liability under applicable laws.

First and most importantly, the employer must keep this process confidential. Safeguards include escalation to designated individuals, maintaining records separate from an employee’s normal personnel file and advising confidentiality among other employees or managers with knowledge of the issue, but this is not an exhaustive list by any measure. Any lapse in that obligation could result in immediate legal exposure.
 

Second, the employer should engage in this process as quickly as possible, including providing employees with any required resources to understand the process. For example, if an employee indicates they may need a leave of absence and they are eligible under laws like the Family and Medical Leave Act (FMLA), the employer should give the employee any required notices under those laws as soon as possible.  

The third step is engaging the employee in an interactive dialogue about whether a reasonable accommodation is available. This will always be an individual assessment, so employers should not adhere to some rigid criteria. Substantively, the Americans with Disabilities Act (ADA) is meant to be interpreted broadly so that individuals, like those with ADHD, are protected. Mitigating tools, like ADHD medication or coping mechanisms, will not disqualify someone’s entitlement to these protections. A person can also receive protection even if they are only disabled in one major life activity, like work, and nothing else.

Another issue that often arises in ADA matters is an employee’s obligation to be qualified; a person does not have a get-out-of-jail-free card at work just because they are disabled. An employee must be able to perform the “essential functions” of a job – although this term will have different meanings depending on the job – and whether protections arise is only triggered where the disability impacts the worker’s ability to perform those functions. This is an important safeguard for employers on some level, but the difficulty for issues like ADHD is that the lines can blur between performance and disability.  

The fourth step, and sometimes where we see the most risk, is verification or certification of the employee’s stated issues, which in many cases arise at the very start of the process. Employees never have to tell their employer they have ADHD if they do not want to, but to be covered by laws like the ADA, that disclosure is probably necessary. An employer who is not on notice of a protected disability may otherwise proceed normally in addressing an employee’s performance issues.

That said, if an employee says something like, “I am really struggling to stay on task because none of the pharmacies can refill my Adderall prescription,” this is probably sufficient notice.

Again, as a best practice, employers can avoid these ambiguities or situations where workers only clarify their diagnosis after it is too late by ensuring workers understand how to address these issues and creating an environment where workers are comfortable doing so. Employers will lower their legal risk by reducing these best practices, policies, resources and stated legal obligations to writing, specifically in places like employee handbooks or management policies. This will invariably minimize the awkwardness and risk from the outset of the verification process.

Otherwise, the only time an employer might ask about an employee’s medical history, including an ADHD diagnosis, is following an employee’s accommodations request, i.e., “We received your FMLA request, but we need a little more information.” A doctor’s note regarding the requested accommodations may be sufficient in many cases, but employers should also become familiar with other resources like official certification forms provided by public agencies that oversee labor laws or leave and disability programs.

Using state-sanctioned certification resources, where available and if necessary, helps avoid any later assertion that an employer’s requests for verification were excessive or harassing.

Employers also need to avoid asking for too much information, which presents separate risks like ADA violations. Employers are only entitled to access information sufficient to verify an employee’s diagnosis and confirm the need for accommodation. Because conditions like ADHD, depression and anxiety manifest differently, including over the course of an employee’s own diagnosis, employers should tread carefully in making any assumptions about whether the verification provided is sufficient to provide an accommodation.

Again, protected leave laws, paid sick time requirements, or disability coverage programs are important places to seek guidance if an employer reasonably determines they need employees to provide additional information to properly assess an accommodation request.

Finally, employers should not delay in addressing employee requests. Certain laws set a specific amount of time for employers to respond to employees seeking accommodation. There are other timelines for required notices and other steps necessary to begin and facilitate an interactive dialogue.

Beyond understanding these precise timelines or seeking legal advice regarding the same, employers should understand that the process is often a moving target, and unnecessary delay may create legal exposure. It is crucial here that an employer does not let skepticism get in the way because an employee’s ADHD or mental health-related request is less straightforward than, for example, an employee who just had surgery or is recovering from an accident.

Q: What risks do employers face if they improperly manage employee accommodation requests or needs, including record keeping, leave requirements, and lingering stigmas or misunderstandings surrounding these issues?

Peter John: Sticking with the certification issue, it is kind of a one-wrong-move situation. Statements like, “Do you really have ADHD?” or, “You only started this medication last year,” or, “Are you sure this wasn’t just sloppiness?” may seem innocuous at the moment but could quickly land an employer in hot water for failing to cooperate with an employee’s request. They could even constitute harassing conduct, sometimes regardless of the validity of the employee’s request. As such, employers should consider seeking legal advice at the start of any reasonable accommodation request where the circumstances seem unclear.

We see the most risk is when an employee first signals a need for accommodation to a lower-level manager or someone outside an organization’s HR or legal function. If that supervisor responds improperly, fails to keep the request confidential, or does not escalate the request on time, the organization could face liability. Because there is still a prevalent stigma around these issues, it only heightens the risk. Again, proper management training will avoid this, especially where those programs are in writing and require some confirmation of completion.

The Adderall shortage has undoubtedly enhanced the focus on this issue for employees. Concurrently, we are seeing a major, recent increase in employee lawsuits around the country, and the job market has recently been a source of ongoing anxiety. Collectively, the reality in this environment is employees may be more likely to exploit a legal error by their employer, so caution is paramount.

To be clear, the risks are not minor. In addition to the disruption of a lawsuit or investigation, damage to an employee-employer relationship and any related costs under laws like the ADA, an employer can face fines up to $75,000 for a first violation and $150,000 for every subsequent violation following that. Employee lawsuits are often more expensive.

Finally, there is a separate angle to consider. Many laws, like the ADA or FMLA and their state and local counterparts, prohibit employers’ uneven treatment of certain disabilities or need for protected leave, an issue that often arises in related discrimination lawsuits. The stigma surrounding ADHD and any lack of more easily recognized symptoms, diagnoses or conditions that an employer may otherwise find in someone recovering from surgery, injured in an accident or managing a chronic disease, for example, makes this an obvious risk.

Employers need to ensure that management is properly trained to avoid being dismissive of protected disabilities arising from mental health versus other categories. The reverse, however, is also true. It is difficult to fashion a good hypothetical, but employers should just take care to avoid a situation where their more limited understanding of conditions like ADHD results in a more flexible process for employees seeking a related accommodation versus a separate disability, where an employer can enforce far more exacting benchmarks based on some kind of recovery plan or medical prognosis.

Click here to read the first part of the interview.

 
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