Highlights:

• Gain valuable insights into effectively managing ADHD challenges amidst medication shortages and equity objectives in the workplace.
• Foster inclusivity by implementing accommodation strategies that address the unique needs of employees with ADHD.
• Ensure equal access to mental health resources for all employees, irrespective of their background or role.
• Navigate ADHD-related issues with confidence by focusing on training, well-defined policies, and adherence to legal requirements.

“One tricky scenario occurs when an employee could, for example, ask for protected leave until they can refill their prescription for ADHD medication like Adderall. The employer should avoid any situation where they check in with employees regularly or randomly to see if the employee filled a prescription. That creates too many legal risks,” said Peter John Veysey, Of Counsel, Nelson Mullins.

In Part I of the interview, we explored how companies can empower neurodiverse employees to reach their full potential, and in Part II, we learned how they can navigate reasonable accommodation and confidentiality for employees with ADHD.

In the third part of the interview, Peter John delves further into the complexities of navigating reasonable accommodation and confidentiality for employees with ADHD, emphasizing best practices, legal compliance, and the promotion of DEI and mental health support in the workplace.

Excerpts from the interview:

Q: Can you provide examples of best practices and items for consideration that employers should be aware of when handling employee issues related to ADHD in light of the medication shortage and broader equity and inclusion goals?

Peter John: Employers should remember that attention deficit/hyperactivity disorder (ADHD) is different for every individual. Establishing some rigid criteria, checklists, or systems may fall short in trying to anticipate, address and accommodate these issues. Indeed, this is exactly why we see overlap with equity and inclusion issues. 

How an employee manages something like ADHD may depend heavily on their background, age, gender identity, or socioeconomic status. ADHD is a glaring example of where certain disability conditions dovetail into major issues that organizations are working hard to address in their diversity, equity, and inclusion (DEI) initiatives. 

Past traumas, certain disadvantages, or other environmental considerations should factor heavily into how employers manage matters like reasonable accommodations for ADHD and related conditions. It is hard to overstate the importance of creating a workplace culture where employees requiring accommodations feel comfortable enough to ask for them and know where to ask for them. 

This will create a format that enables an employer to fully consider the issues just described, including how and if they can apply certain DEI considerations in addressing these issues.

Conversely, and more generally, employers should train managers to know how and where to identify signals that may trigger the employer’s reasonable accommodation obligation and how to handle those requests. The medication shortage is a good opportunity to conduct a refresher on these issues within an organization, and large organizations may even consider formatting some specific process or support resources around mental health-related issues. 

It is a good opportunity to bake an organization’s DEI efforts into important functions like human resources (HR) guidelines. For example, “Please remember, if a direct report is having trouble explaining why they need extra help, consider their overall situation, what else may be going on in their life, before you make a mistake like categorically shutting down their request.” 

Employers should also consider in advance what accommodations may be possible for workers with ADHD, particularly where they cannot access medication. These may include flexible hours, reassignment, remote working possibilities, or some kind of protected leave. This could help prepare employers to avoid, where possible, a protracted interactive dialogue or certification process that will invariably increase the risk of a costly legal error.

One tricky scenario occurs when an employee could, for example, ask for protected leave until they can refill their prescription for ADHD medication like Adderall. The employer should avoid any situation where they check in with employees regularly or randomly to see if the employee filled a prescription. That creates too many legal risks. 

If the employer’s HR team is handling that process, they should also ensure that other employees like, for example, an immediate supervisor – regardless of whether they know why the employee took leave, are also not checking in to see when the employee will return. 

A better solution may be, and a caution that this is more of a hypothetical rather than a best practice, some format where the employee requests leave for a certain amount of time. If the employee needs additional time because they cannot find a refill, they should notify the employer accordingly. There is nothing wrong with an employer enforcing a general policy that reserves the right to discipline employees for dishonesty or abusing this process, whether for sick time, leave, or other accommodations. 

Similarly, employers are entitled to certify an employee’s need for an extension of their accommodation. For example, where reasonable and legal, an employer can ask employees to verify why they need an additional week of paid sick time while they wait for medication. Employers can also enforce discipline when an employee fails to check in or return after the allotted time. As always, employers should check that any related policies here are clear and in writing. 

Specific to this issue, remember that many medications to treat mental health or behavioral issues may require some kind of re-acclimation or lifestyle adjustment. Restarting heavier-duty medications like Adderall may require a gradual reintroduction. Employers should also consider possible anxieties or apprehensions that may be secondary to certain mental health diagnoses that a return to the work environment, or returning to work without an accommodation, may trigger. Employers should take care to be flexible and understanding, to the extent reasonable, in this situation. 

Employers should maintain and enforce a clear and unmistakable zero-tolerance policy for harassment, discrimination, or bullying that expressly includes mental health, behavioral or neurodivergence issues, including ADHD, and tailor any training materials to reflect the same. 

Q: How can employers ensure that all employee populations, regardless of background, demographics, or position, have access to mental health resources related to conditions like ADHD?

Peter John: Mental health resources for people with ADHD, like any behavioral or mental health condition, can be very different and will vary per individual. Still, there are a few points we can apply across the board. 

First, employers should be amenable to granting time for employees to seek treatment for ADHD. For some, this may look like weekly therapy, psychiatric appointments, mindfulness or behavioral training, or even experimental therapies. As discussed, whether employees previously had resources or support networks to understand if they had ADHD in the first place may vary widely based on their demographic or socioeconomic background. Also, consider how language and immigration status may affect this. 

The medication shortage is one factor in increasing regulatory scrutiny on media like telehealth, particularly during the pandemic, where concerns arose that providers were over-diagnosing or prescribing patients without the usual testing rigors attendant to diagnosing ADHD. 

If this continues, employers should develop some understanding of what time and resources an employee may need to determine if they have adult ADHD in the first place – which, for obvious reasons, is a lengthier process than something like an X-ray or blood test. If employers are committed to equity and inclusion, they should consider how to address a scenario where an employee says something like:

(1) “I have been struggling at work lately, and I would like time off to get tested for ADHD, which was not really a thing where I grew up – what are my options?” or 
(2) “My English is limited and I am not really sure how to navigate the mediation process, but I think it is definitely something I need.” There are obvious legal and equity issues here, and it does not hurt to plan for them in advance.

Also, employers should review their healthcare plans to assess the costs and availability of ADHD treatments. For example, if you have an employee with a $400 monthly prescription, can they work with HR to get on a Health Savings Account to better afford it? Could you offer reimbursement through some kind of healthcare credit? 

Employers will be better positioned to meet their legal obligations and advance their equity and inclusion goals on this issue if they commit to understanding the financial, mental, physical, and emotional realities of ADHD. This will better ensure that every employee with ADHD, regardless of their background, can have fair access and support from their employer. 

Q: What role can HR and legal teams play in properly handling issues related to ADHD in the workplace, and how can management effectively communicate with these teams to ensure compliance with relevant laws and best practices?

Peter John: Policies are key, and a clear and easily understood process to manage these issues, in writing, is the first and best step.

As we keep repeating, training is also critical. Managers and supervisors are often the first people to hear accommodation requests – given this, they can set the tone for all subsequent interactions relating to a request. HR and legal teams should ensure that supervisors and managers are well-trained on their confidentiality obligations, what they can and cannot ask an employee, and the proper reporting infrastructure to handle these requests. Additionally, employers should coordinate with hiring teams to ensure these protocols are also covered during the application process.

Finally, stay up-to-date on legal and medical developments, and incorporate that into the organization’s policies, training materials and workplace culture. Employers should not only understand the rules as they develop in applicable jurisdictions, but also remain informed on other matters like how conditions like ADHD manifest themselves to better refine workplace policies like those designed to prevent bullying and harassment. 

This is an evolving space in employment and disability law, and it is not exactly obscure – diagnoses for conditions like depression, anxiety, and ADHD account for around 10% of the U.S. population, which may be a low number. Employers have every incentive to consider this a key topic when assessing their workplace culture, equity, and inclusion goals and obligations. 

Q: Can you discuss any unique challenges or considerations that employers should keep in mind when handling employee issues related to the medication shortage itself, in light of the overlay of other related conditions and laws?

Peter John: Aside from how employers should manage accommodations and understanding that an employee’s inability to access something like Adderall may be a legitimate reason to grant them an accommodation, a few other specific issues arise. Medication shortages increase the risk that patients will self-medicate with other substances, and a lot of data indicates an increased prevalence of substance abuse or dependency for people with ADHD, anxiety, or depression. 

Laws like the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act  (FMLA) provide similar protections for certain substance abuse or addiction-related conditions, so there is definitely an overlap. Employers must walk a narrow line here. If an employee had or reveals a past issue with addiction, an employer cannot discriminate against them. If an employee signals the need for treatment or rehabilitation, in many cases, that is also protected in some jurisdictions more than others. 

That said, employers have other obligations among those to protect their business and other employees. There are fewer or no protections where an employee is obtaining unauthorized prescription medication, working while impaired, or the employer otherwise discovers some evidence of illegal drug use outside of a protected request, like seeking treatment assistance, and employers should proceed accordingly.

Finally, many employers drug test. Prescription medications may appear on certain test results. Employers that drug test should ensure their policies clearly address prescription medication use, including how an employee can address what medications they are taking before or after they submit to testing. While this is an entirely different conversation, it is a good opportunity in this context to remind employers that they cannot discriminate against or harass a worker who they discover is lawfully using a controlled substance like Adderall to treat a condition like ADHD.
 

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