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Old 03-20-17, 02:51 AM
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Legal Issues, Employment, Privacy and ADHD

From a 2014 legal decision in Dillon v. Norfolk Southern Ry. Co.:
Quote:
Originally Posted by Dillon v. Norfolk Southern decision
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.

Last edited by namazu; 03-20-17 at 04:35 PM.. Reason: Political discussion is a restricted topic. Also, added quote tags to distinguish copied material.
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Old 03-20-17, 12:21 PM
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Re: Legal Issues, Employment, Privacy and ADHD

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?

Last edited by namazu; 03-20-17 at 04:30 PM..
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Old 03-20-17, 09:25 PM
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Re: Legal Issues, Employment, Privacy and ADHD

The ADA has a long way to go through the courts before we'll know how helpful it is.

Last edited by namazu; 03-20-17 at 10:41 PM.. Reason: Political comments aren't allowed on the open forum. Please see ADDF guidelines.
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Old 03-22-17, 09:43 AM
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Re: Legal Issues, Employment, Privacy and ADHD

At least ADHD is being recognized as a legitimate medical disorder which qualifies it for special protection under the law.
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Old 03-22-17, 12:40 PM
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Re: Legal Issues, Employment, Privacy and ADHD

Quote:
Originally Posted by Letching Gray View Post
From a 2014 legal decision in Dillon v. Norfolk Southern Ry. Co.:

...
'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 ?


It would be interesting to read more cases involving ADD here.
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Old 03-23-17, 06:22 PM
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Re: Legal Issues, Employment, Privacy and ADHD

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Originally Posted by userguide View Post
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 ?


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.
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Old 03-23-17, 08:13 PM
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Re: Legal Issues, Employment, Privacy and ADHD

Quote:
Originally Posted by Postulate View Post
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?
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Old 03-23-17, 10:09 PM
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Re: Legal Issues, Employment, Privacy and ADHD

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?
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Old 03-23-17, 11:25 PM
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Re: Legal Issues, Employment, Privacy and ADHD

Quote:
Originally Posted by acdc01 View Post
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.
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Old 03-24-17, 05:40 AM
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Re: Legal Issues, Employment, Privacy and ADHD

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
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Old 03-24-17, 06:37 AM
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Re: Legal Issues, Employment, Privacy and ADHD

Quote:
Originally Posted by acdc01 View Post
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
Quote:
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.
Quote:
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.
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