View Full Version : Legal Issues, Employment, Privacy and ADHD


Letching Gray
03-20-17, 02:51 AM
From a 2014 legal decision in Dillon v. Norfolk Southern Ry. Co. (http://app.printfriendly.com/print?source=homepage&url_s=uGGC%25dN%25cS%25cSJJJmyrntyrmpBz%25cSqrpvFv BA%25cSVA%25cfcaSQP1%25cfcacabeaiabUib%25cSQVYY10% 25cfcaIm%25cfca014S1YX%25cfca5176UR40%25cfca4%2Fm% 25cfcaP1m):
Relying upon this reasoning, a Maine district court in Blanco denied a motion to dismiss a similar Section 12112(d)(3)(B) claim. In that matter, the plaintiff failed to disclose that he was diagnosed as ADHD on an employment entrance examination, which the employer's in-house physician discovered after the plaintiff requested accommodations. 802 F. Supp. 2d at 217-18.

The physician disclosed the plaintiff's answers to the examination to the employer's labor relations department. Id. at 218. The employer subsequently terminated the plaintiff for failing to disclose his ADHD diagnosis. Id.

The Blanco court resolved the defendant's motion "as a matter of straightforward statutory interpretation." Id. at 222. After finding that the exceptions governing emergency treatment and government investigations did not apply, the court then turned to the "one potential exception to allow disclosure of the information in the employment entrance examination medical file: 'supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations.'" Id. at 222-23 (citing Section 12112(d)(3)(B)(i)). Such an exception did not apply, according to the Blanco court, because there was:

nothing in the Amended Complaint that would allow the Court to conclude that Dr. Mazorra disclosed the contents of the medical questionnaire to the Defendants' management personnel in order to
advise them of "necessary restrictions on the work or duties" for Mr. Blanco or for "necessary accommodations." To the contrary, she disclosed the information to management because in her view he had lied on the questionnaire, not to advise them of necessary restrictions or accommodations. The Court cannot squeeze these facts into 12112(d)(3)(B)(i).

As none of the exceptions appl[y] and as a matter of direct statutory interpretation, the Court concludes that the Plaintiff has alleged sufficient facts to avoid dismissal as to whether Dr. Mazorra's disclosure violated the confidentiality provision of the ADA.

Id. at 223. The Blanco court also disagreed with the employer's argument that the confidentiality requirement only applies to "truthful information. . . . [T]here is no prevarication exception to the ADA's confidentiality mandate for employment entrance examinations, much less for information the company doctor perceives is inaccurate. It is the information, accurate or not, that the statute protects." Id. at 224. Finally, the court commented that Downs was "generally consistent" with this conclusion, again emphasizing that the "ADA does not bar employers from making employee-authorized disclosures of medical information; the ADA bars employers from unauthorized disclosures of information obtained from employment entrance examinations." Id. at 227.

The ADA laws which provide a measure of protection for us individually, depending on a judge's interpretations. I think it can't hurt to be familiar with the latest case law rulings, which courts are leaning which ways, and if any recent precedents are relevant to you, me and our families.

Postulate
03-20-17, 12:21 PM
A doctor who forwards info. to the HR department?! How sweet!

Can't imagine what the conversation sounded like:

Doctor: This guy lied, he has ADHD...omg.
HR: He's got AIDS? Wow. And he didn't tell us that?
Doctor: No, not AIDS, ADHD.
HR: Is that contagious?
Doctor: Yes, his disengaged and dreamer attitude will bring others down.
HR: Dammit! We dodged a bullet I guess.
Doctor: I guess we did.

How come health questions in employment entrance examinations are not considered a prohibited ground of discrimination?

Letching Gray
03-20-17, 09:25 PM
The ADA has a long way to go through the courts before we'll know how helpful it is.

Letching Gray
03-22-17, 09:43 AM
At least ADHD is being recognized as a legitimate medical disorder which qualifies it for special protection under the law.

userguide
03-22-17, 12:40 PM
From a 2014 legal decision in Dillon v. Norfolk Southern Ry. Co. (http://app.printfriendly.com/print?source=homepage&url_s=uGGC%25dN%25cS%25cSJJJmyrntyrmpBz%25cSqrpvFv BA%25cSVA%25cfcaSQP1%25cfcacabeaiabUib%25cSQVYY10% 25cfcaIm%25cfca014S1YX%25cfca5176UR40%25cfca4%2Fm% 25cfcaP1m):

...
'supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations.'" Id. at 222-23 (citing Section 12112(d)(3)(B)(i)). Such an exception did not apply, according to the Blanco court, because there was:

nothing in the Amended Complaint that would allow the Court to conclude that Dr. Mazorra disclosed the contents of the medical questionnaire to the Defendants' management personnel in order to
advise them of "necessary restrictions on the work or duties" for Mr. Blanco or for "necessary accommodations." To the contrary, she disclosed the information to management because in her view he had lied on the questionnaire, not to advise them of necessary restrictions or accommodations. The Court cannot squeeze these facts into 12112(d)(3)(B)(i).

...


Can someone provide the definitions of "necessary accomodations" or "resctrictions on the duties" and any ruling that states it won't interfere with the freedom to hire and fire at will ?
:eyebrow:

It would be interesting to read more cases involving ADD here.

Letching Gray
03-23-17, 06:22 PM
Can someone provide the definitions of "necessary accomodations" or "resctrictions on the duties" and any ruling that states it won't interfere with the freedom to hire and fire at will ?
:eyebrow:

It would be interesting to read more cases involving ADD here.

You've raised good questions. Thsse terms mean different things in different courts and to different judges. It takes time for these kinds of issues to go through the courts.

Fuzzy12
03-23-17, 08:13 PM
A doctor who forwards info. to the HR department?! How sweet!

Can't imagine what the conversation sounded like:

Doctor: This guy lied, he has ADHD...omg.
HR: He's got AIDS? Wow. And he didn't tell us that?
Doctor: No, not AIDS, ADHD.
HR: Is that contagious?
Doctor: Yes, his disengaged and dreamer attitude will bring others down.
HR: Dammit! We dodged a bullet I guess.
Doctor: I guess we did.

How come health questions in employment entrance examinations are not considered a prohibited ground of discrimination?

:lol:

acdc01
03-23-17, 10:09 PM
Nice seeing the little guy win for once.

That said, I'm wondering if this means that if he did ask his boss directly on his own for accommodations, could he have been fired? And yes, is asking about any necessary accommodations in an entrance exam even a legal reason to fire someone if they didn't disclose an accommodation needed for ada reasons?

Letching Gray
03-23-17, 11:25 PM
Nice seeing the little guy win for once.

1. That said, I'm wondering if this means that if he did ask his boss directly on his own for accommodations, could he have been fired? (You mean if he didn't disclose his disability on the application?)

2. And yes, is asking about any necessary accommodations in an entrance exam even a legal reason to fire someone if they didn't disclose an accommodation needed for ada reasons?

1. If you are applying for a job, an employer cannot ask you if you are disabled or ask about the nature or severity of your disability. An employer can ask if you can perform the duties of the job with or without reasonable accommodation. An employer can also ask you to describe or to demonstrate how, with or without reasonable accommodation, you will perform the duties of the job.

2. the ADA makes it unlawful to discriminate in employment against a qualified individual with a disability. The ADA prohibits asking about specific disabilities. An employer may ask if the applicant has any disability that would prevent him from doing the applied for job. An employer cannot require you to take a medical examination before you are offered a job. Following a job offer, an employer can condition the offer on your passing a required medical examination, but only if all entering employees for that job category have to take the examination. However, an employer cannot reject you because of information about your disability revealed by the medical examination, unless the reasons for rejection are job-related and necessary for the conduct of the employer's business. The employer cannot refuse to hire you because of your disability if you can perform the essential functions of the job with an accommodation.


Q. Should I tell my employer that I have a disability?

A. If you think you will need a reasonable accommodation in order to participate in the application process or to perform essential job functions, you should inform the employer that an accommodation will be needed. Employers are required to provide reasonable accommodation only for the physical or mental limitations of a qualified individual with a disability of which they are aware. Generally, it is the responsibility of the employee to inform the employer that an accommodation is needed.

Q. Can an employer offer a health insurance policy that excludes coverage for pre-existing conditions?

A. Yes. The ADA does not affect pre-existing condition clauses contained in health insurance policies even though such clauses may adversely affect employees with disabilities more than other employees.

acdc01
03-24-17, 05:40 AM
Can an employer fire you for failing to request an accommodation when they specifically asked you if you needed any accomodations during the hiring process?

If so, that sucks. It's pretty much the same thing as asking whether you have a disability if the accommodation you need seems really abnormal.

I think that preexisting condition thing you mentioned doesn't really matter anymore since insurance companies can't refuse coverage of preexisting conditions anymore. That is unless the laws get changed again

Letching Gray
03-24-17, 06:37 AM
Can an employer fire you for failing to request an accommodation when they specifically asked you if you needed any accomodations during the hiring process?

If so, that sucks. It's pretty much the same thing as asking whether you have a disability if the accommodation you need seems really abnormal.

I think that preexisting condition thing you mentioned doesn't really matter anymore since insurance companies can't refuse coverage of preexisting conditions anymore. That is unless the laws get changed again

The ADA prohibits an employer from retaliating against an applicant or employee for asserting his rights under the ADA.
It depends on when the individual recognized his need for such an accommodation, I suppose. This kind of information is available on the net published under ADA regulations.

Regarding preexisting conditions: some still are insured through the private sector, so it still applies to them, I imagine.

There are many, many regulations. You guys are asking good questions and the specifics, the way the regs are being interpreted, or answered, is happening in our courts all the time all across the country.

Get this.
To be protected under the ADA, an individual must have, have a record of, or be regarded as having a substantial, as opposed to a minor, impairment. A substantial impairment is one that significantly limits or restricts a major life activity such as hearing, seeing, speaking, breathing, performing manual tasks, walking, caring for oneself, learning or working.

An individual with a disability must also be qualified to perform the essential functions of the job with or without reasonable accommodation, in order to be protected by the ADA.

IOW, to be considered disabled, a person must be severely incapacitated. Right? Yet, to be hired as a disabled person, that individual must be able to do the specified job related tasks, with or without accommodations!

So, if I can do the job w/o accommodations, how can I be considered disabled? Say I'm blind, applying for a job answering phones, and w/o a braille typewriter and phone, I can't do the work. With such accommodations, I can. But, they don't have to hire me? Doesn't make sense, to me.

Letching Gray
03-26-17, 04:35 PM
Estimates vary. Some claim 50% of inmates, male and female, are afflicted with ADHD. Personally, that doesn't seem too high, given our "rap sheet" of symptoms. We are sitting ducks. We are the perfect storm of traits that lead to imprisonment.

England screens for ADHD. Shouldn't the United States? Just for purely economic reasons, it makes sense, considering what it costs to incarcerate criminals, let alone the morality of imprisoning people who lack control over their behavior.

namazu
03-26-17, 06:40 PM
Disclaimer: I'm not a lawyer, and even if I were, I wouldn't give legal advice on the forum.


IOW, to be considered disabled, a person must be severely incapacitated. Right? Yet, to be hired as a disabled person, that individual must be able to do the specified job related tasks, with or without accommodations!

So, if I can do the job w/o accommodations, how can I be considered disabled? Say I'm blind, applying for a job answering phones, and w/o a braille typewriter and phone, I can't do the work. With such accommodations, I can. But, they don't have to hire me? Doesn't make sense, to me.
Having a disability (for ADA purposes) doesn't imply complete, total incapacitation. As the legal language says, it requires "an impairment that significantly limits a major life activity". The impairment doesn't have to limit all life activities or all work activities for a person to be considered disabled under the law. (Standards for defining a disability under the ADA and Section 504 differ from those used to determine eligibility for Social Security disability benefits.)

Many impairments can be at least partly mitigated through the use of aids or accommodations (e.g. seeing eye dogs, assistive technology, braille, ramps, medication, etc.).

In the past, some courts found that certain mitigating measures rendered a person "not disabled" and thus not covered by ADA -- so you'd have a kind of Catch-22 whereby the mitigating measures allowed you to function safely and effectively, but then if you were fired because someone had prejudicial ideas about your condition or the medication, you had no recourse because you weren't considered "disabled".

Revisions to the legislation clarified that the intent of the law was to give broader protection, and tried to make the process for documenting a disability less onerous, such that the focus was on whether discrimination based on disability had occurred, rather than whether the person was "legitimately" disabled.

Taking your example of a blind person who seeks a job answering phones:

This person would be considered "otherwise qualified" if they have any necessary credentials and the general ability to carry out the "essential functions" of the work -- in this case, that may mean talk on the phone, answer questions, take notes, communicate with office staff, etc.

Per an ADA FAQ:
A qualified individual with a disability is a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation. Requiring the ability to perform "essential" functions assures that an individual with a disability will not be considered unqualified simply because of inability to perform marginal or incidental job functions. If the individual is qualified to perform essential job functions except for limitations caused by a disability, the employer must consider whether the individual could perform these functions with a reasonable accommodation. If a written job description has been prepared in advance of advertising or interviewing applicants for a job, this will be considered as evidence, although not conclusive evidence, of the essential functions of the job.

The blind employee might require an accommodation (Braille typewriter or keyboard) to do the part of the job that involves taking notes. Maybe they also need text-to-speech software to read the computer screen to them. With these accommodations, they can perform all the essential functions of the job.

If they had a disability that made them truly incapable of carrying out the essential job functions (even with reasonable accommodations), then they wouldn't be considered "othewise qualified".

For example, someone without use of arms or legs might not be qualified to do a job whose "essential functions" primarily involved scaling telephone/electric poles, lifting heavy transformer boxes, and connecting phone or power lines.

But someone without use of arms or legs with an IT degree whose main job is electronically troubleshooting the phone system from an office (which may occasionally involve carrying a ream of paper or moving a printer within the office) could be considered be "otherwise qualified" because those physical lifting tasks are incidental to the main job. They may still need some accommodations to do the office job (accessible desk, hands-free devices, dictation software, whatever), but the fact that it might someday be useful for them to be able to lift something for reasons that aren't central to the job doesn't disqualify them.

No, an employer doesn't have to hire someone with a disability, even if they're qualified, but they can't discriminate against them because of the disability, either. That said, proving discrimination on the basis of disability (when there may be a lot of qualified applicants for a position) tends not to be easy in a lot of cases.

With ADHD, these issues tend to be especially tricky, because "meeting deadlines", "working independently", etc., are sometimes listed in the job description. Accommodations like reminders, early deadlines, and project-management software may help a person complete work on time, but sometimes "working independently" could be an issue if a person benefits from frequent check-ins with a supervisor to stay on track.

Determining what counts as an "essential job function", and what is a "reasonable accommodation" under the law, can be very contentious. The nature and specific circumstances of the job (and the exact wording of the job description) can make a big difference.

dvdnvwls
03-27-17, 03:15 AM
So far, it appears that for employers this is all optional. Until there are standards that are both enforceable and consistently enforced, actually requiring employers to hire and accommodate people with significant but job-nonessential disabilities, the law is just window dressing.

Letching Gray
03-28-17, 10:22 PM
"Matthew Weaving was diagnosed with ADHD when he was six years old. At twelve, he stopped taking medication, but had difficulty getting along with others during his teen and adult years. He joined the Beaverton, Oregon police force after passing all of his physical and mental exams. He did not disclose his ADHD diagnosis or prior medications, believing he was no longer afflicted. He stayed in Beaverton for about 10 years, but received much negative feedback about his personality conflicts."

Details of the case

"The takeaway: A diagnosis of ADHD by itself will most likely not support an ADA claim. However, those who have a severe inability to relate to others (such as those who cannot relate to anyone, rather than just co-workers), would still be considered disabled under the court's standards. The crucial element is proving that the medical condition's impairment "substantially limits" one or more major life activities."

Letching Gray
03-28-17, 10:32 PM
When does ADHD count as a protected ‘disability’?

by MINDY CHAPMAN, ESQ. on SEPTEMBER 16, 2009 1:00PM
in DISCRIMINATION AND HARASSMENT,EMPLOYMENT LAW,HUMAN RESOURCES
Do you have employees who are easily distracted, restless, disorganized and forgetful? Maybe that’s just who they are—or maybe they’ve been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD).

It’s pretty common. About 8 million adults in the United States suffer from it. It’s an “invisible” disability, but one court recently said employers shouldn’t be so fast to discount it. A disability is a disability … whether you can see it or not.

Case In Point: Dr. Robert Lewis worked in the University of Pittsburgh Medical Center emergency room. He told the ER chief that he thought he had ADHD and asked to be accommodated by seeing only one patient at a time.

The chief denied his request and formally put Lewis on probation because he was “impaired and distractible.” Lewis was also required to undergo a psychological evaluation. Subsequently, Lewis was diagnosed with ADHD.

The hospital asked his treating doctor to provide “as much information as possible.” Lewis’ doctor said confidentiality requirements prohibited him from proving all info, but he offered to respond to specific questions. The hospital never followed up.

Soon after, Lewis was terminated for allegedly failing to provide a letter from his psychologist about his ADHD diagnosis, failing to park in the doctors’ parking lot and having unsigned paperwork for more than 30 days.

Lewis sued under the Americans with Disabilities Act (ADA), saying the hospital had a duty to accommodate his ADHD behavior.

The result: The court sided with Lewis and sent the case to a jury, saying Lewis showed enough evidence that the hospital regarded him as disabled and fired him because of his ADHD.

The court also rejected the hospital’s defense that it fired Lewis because he didn’t provide enough medical info, saying, “Disabled employees, especially those with psychiatric disabilities, may have good reasons for not wanting to reveal every detail.” (Lewis v. UPMC Bedford, W.D. Pa., 3/30/09).

VoxPopuli
04-03-17, 03:10 AM
It's interesting that the company physician was able to diagnose ADHD, it's a bit tricky unless it is suspected...

After another ADD related incident, I believe the management team for the company I work for has decided there is "something" wrong with me that causes small, repetitive, mistakes in judgement. I had to face 3 angry executives wanting to know what could have POSSIBLY motivated an employee with 15 years experience, who has been a top-performer - to do something so dumb (actual question). I wanted to say something, but my experience told me to apologize and move on...until they told me that "actions, no matter how unintended, have consequences..." Said that while they were convinced I was not intentionally insubordinate, "someone" on the senior staff had taken it that way - so I was issued a written reprimand. I believe this was A) to scare me into THINKING before I say/type anything, make an unpopular/unfiltered public statement B) the first step in "documentation" process.

I've never disclosed that that I have ADD, it's been the career killer. I've been unmedicated for a very long time - but lately it's been harder to focus, easier to make judgement errors, and has me in a tight pickle...especially now that my employer knows I crossed the age 50+ age barrier. I think they may be trying to make the case that my mental "dexterity" has eroded...so, while the case noted above seems to give me hope, the law's vagueness surrounding the interpretation of terms such as "necessary accommodation" and "restriction of duties" has me concerned.

I'm not sure how long I have, but corporate America isn't really invested in waiting for the courts to figure out restrictions & accommodations. I appreciate the posts like this - I'm keeping track like never before.

snjyds
05-04-17, 01:53 AM
No, an employer doesn't have to hire someone with a disability, even if they're qualified, but they can't discriminate against them because of the disability, either. That said, proving discrimination on the basis of disability (when there may be a lot of qualified applicants for a position) tends not to be easy in a lot of cases.
A small part of my situation is something like this. I work mostly from home. I requested reasonable accommodation in the form of a phone call or email prior to monthly meetings. The head of my department agreed to it. It amounted to something as simple as calling me on my cell home, or a friendly email reminder, about 10 times a year. That is all!

Unfortunately, later on the head didn't even bother to follow up. I never received any reminder whatsoever. I attended about 7/10 meetings that I remembered, but as no accommodation was provided, I missed the other meetings.

When I applied for promotion, the head, in the recommendation letter, simply listed my failure to attend meetings regularly. The board (quite unaware of the situation) declined my application for promotion, on that basis!