QQ # 125

Like others who have recently submitted questions to you, we have an ADA issue. We have an employee who seemingly is unable to focus, to complete a task that he has started. Simply stated, he is easily distracted. His job responsibilities are important, and others are dependent on his efforts.

I am familiar with the issue of “attention deficit disorder,” but I trust that this cannot constitute a disability under the ADA. I mean, this guy cannot perform his job responsibilities. Moreover, I don’t see how we can “accommodate” his limitations, short of hiring another employee to help him do his job. Got any advice?

Analysis

As I have suggested in other analyses, in my view, evaluating accurately and addressing properly mental disabilities is perhaps the most difficult challenge under the ADA. Even more than physical disabilities, mental disabilities simply do not present a neat “one size fits all” response. There are numerous moving and interactive parts involved in these situations, including, by way of illustration, the following ten questions:

  • What is the alleged mental disability?
  • Is the mental health condition recognized in the DSM IV?
  • How severe is the mental health impairment?
  • How long has the employee suffered from the impairment?
  • Is the employee’s behavior constant or has the health impairment and its consequences been worsening?
  • Is the employee receiving psychological or psychiatric counseling for the mental health condition?
  • Is the employee using prescription (or, for that matter, non-prescription) medication to control the problems caused by the condition?
  • How does the mental health impairment affect the employee’s job performance?
  • What is the nature of the job being performed?
  • Does the employee’s health condition make him a danger to himself, co-workers or members of the public?

Of course, these illustrative questions also lead to the typical inquiries involved in every disability discrimination case: a) does the mental health impairment substantially limit a major life activity; b) is the employee regarded as having a disability; c) can the employee perform the essential functions of the job, with or without a reasonable accommodation; and d) even if the employee could perform the job with a reasonable accommodation, would the accommodation cause the employer an undue hardship? As you likely know, evaluating each of these questions is a fact intensive exercise that can vary dramatically from employer to employer and situation to situation, depending on a host of dissimilar variables.

With respect to the question you posed, I am missing some of the most critical facts relating to the nature of the job, the severity of the mental impairment, the treatment (if any) the employee is receiving, the potential accommodations, etc. Nevertheless, I do have a few thoughts based on the information you provided.

You state that your employee is “unable to focus,” “unable to complete a task that he has started,” and is “easily distracted.” It would appear that based on these observations, you have begun speculating about whether your employee has attention deficit disorder (ADD) or attention deficit hyperactivity disorder (ADHD). Has your employee ever suggested that he suffers from ADD or ADHD? Have any of your other employees ever informed you that their co-worker has told them that he suffers from ADD or ADHD? Has your employee ever advised you, directly or indirectly, that he suffers from some type of mental disability, even if he did not specify what it might be? Has your employee ever suggested that he needs some type of accommodation to perform his job effectively?

If all of those questions were answered negatively, you may not be confronting an Americans With Disabilities Act (ADA) question at all. Rather, you simply may be employing a worker who, for a multitude of reasons, is not fulfilling your company’s legitimate performance expectations. You need to evaluate his performance, communicate your performance expectations, and if necessary, work with your employee to improve his performance or, if that approach does not yield the results you hope for, impose discipline, up to and including termination.

But, let’s assume that not all of the questions are answered in the negative, and that there is a sound factual foundation for your suspicion that your employee suffers from ADD or ADHD. The DMS IV (the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition – essentially, the mental health professional’s Bible) defines these mental conditions as follows:

“The essential feature of Attention-Deficit/Hyperactivity Disorder is a persistent pattern of inattention and/or hyperactivity-impulsivity that is more frequent and severe than is typically observed in individuals at a comparable level of development. * * * Inattention may be manifest in academic, occupational, or social situations. Individuals with this disorder may fail to give close attention to details or may make careless mistakes in schoolwork or other tasks. Work is often messy and performed carelessly and without considered thought. Individuals often have difficulty sustaining attention in tasks or play activities and find it hard to persist with tasks until completion. . . . There may be frequent shifts from one uncompleted activity to another.”

The DSM IV goes on to describe, over 8 additional pages, the differences in these conditions, the influences of external factors (culture, age and gender), and many other variables bearing upon an ADD or ADHD diagnosis. In short, mental health issues are nuanced. Employers’ responses must be correspondingly nuanced.

Depending on the nature and severity of your employee’s mental health impairment, his condition well may rise to the level of a qualifying disability under the ADA or parallel state anti-discrimination statutes. But, as suggested above, there are many factors that should be considered before reaching that conclusion. Moreover, as you likely know and as referenced above, the ADA and its enforcement agency, the EEOC, mandates that employers engage in an interactive process with their employees to better understand the nature and impact of an employee’s physical or mental disability and thoughtfully evaluate whether that disability can be accommodated.

It would appear from your question that you have prejudged the issue of whether your company could offer your employee a reasonable accommodation. You wrote, “I don’t see how we could accommodate his limitations, short of hiring another employee to help him do his job.” This observation begs a few related inquiries: a) how long has he been employed; b) how has he been able to perform his job in the past; c) have his supervisors previously identified any performance deficiencies by this employee; d) did his job responsibilities recently change in a way that required him to perform different job functions; etc. As these questions may suggest to you, if he has been able to perform satisfactorily in the past and his job responsibilities have not changed meaningfully, or if he has been a long-term employee and his performance has not been criticized, your company may have some difficulty persuading a fact-finder (whether judge or jury) that this employee is not capable of adequate performance in the future, with or without a reasonable accommodation.

You somewhat flippantly suggest that the only accommodation would be to hire another employee – I suggest that you consider other options. Many individuals who experience ADD or ADHD receive medication that helps significantly. There also may be options available to your company that involve more private work space, elimination of distractions, allowing your employee to focus on one primary task at a time, and other creative solutions. (For those of you who are fans of the TV show, The Office, I recommend against Jim’s solution of moving Ryan’s (the distractable employee) desk into the closet as was depicted several episodes ago.) In short, there may be a variety of creative ideas that could be explored that would enhance your employee’s ability to contribute productively.

You also should be aware of the fact that if you act precipitously or harshly, you may be buying litigation. This point is illustrated by a relatively recent case out of the United States District Court for the Western District of Pennsylvania, Lewis v. UPMC Bedford and UPMC, Civil Action No. 3:2007-13 (March 30, 2009). The Lewis case involved some unusual facts – an Emergency Room physician self-diagnosing that he was suffering from ADD and seeking an accommodation from his employer. I confess that my initial reaction to this fact pattern was, “You’ve got to be kidding.” If ever you need an employee to be able to focus, it would have to be in an ER. The stakes are simply too high for an employee, especially a physician, to be distracted.

But, as one reads the analysis of the federal district court, it becomes clear that the issue may be more complex than would first appear. After the physician self-diagnosed his problem and requested an accommodation, his employer rejected his request and soon thereafter terminated his employment. The reasons the employer offered for the discharge were: a) the physician’s unwillingness to provide a letter from his psychologist regarding his ADD evaluation; b) his failure to park in the physician’s parking lot; c) his missing a department meeting; and d) his failure to complete medical records. But, the physician in question did provide a letter from his psychologist stating that the physician’s neuropsychological evaluation did not “reflect any cognitive deficits that would affect Dr. Lewis’ ability to practice emergency room medicine.” And the other reasons proffered by the employer to justify the discharge either proved to be a "mistake" or were viewed as trivial by the Court.

The plaintiff (Dr. Lewis) brought a number of different claims based on the ADA, the Rehabilitation Act (interpreted largely consistently with the ADA) and common law claims. The case was presented to the court on defendant’s motion for summary judgment.

Interestingly, the plaintiff’s first claim was that the hospital violated Title III of the ADA, the provision stating that no individual shall be discriminated against on the basis of a disability “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . ..” Based on an earlier Third Circuit decision, the Court found that a doctor with staff privileges, who is not an employee of purposes of Title I, may assert a claim under Title III as a person who is denied the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation. Because the plaintiff was denied “staff privileges” at the hospital (a place of public accommodation) as a result of his discharge, the Court found that he could proceed to trial on this claim.

The second claim asserted by plaintiff was that the hospital violated his rights under the Rehabilitation Act by seeking medical information from him and his treating psychiatrist beyond that permitted by the statute. Here too, the Court found that the plaintiff’s claim could proceed to trial, concluding that the requests for medical information were far broader than necessary and that a hospital should have been well aware of the need for confidentiality with respect to medical records.

Finally, the plaintiff contended that the loss of his staff privileges and the overbroad inquiry into his medical condition violated another provision of the Rehabilitation Act which prohibits discrimination in programs receiving federal financial assistance. Section 504 of the statute provides that a violation may be established by proving: a) that the plaintiff is a “handicapped individual” under the Act; b) that he is otherwise qualified for the position sought; c) that he was excluded from the position “solely by reason of his handicap;” and d) that the program receives federal financial assistance. Here too the Court found the plaintiff had a cognizable claim, concluding that the reasons proffered by the hospital for the discharge decision involved disputed material facts.

As the Lewis case illustrates, if confronted with an employee who may have ADD or ADHD, you should not assume that this provides you a free pass to terminate his employment. I recommend that you treat an employee with ADD or ADHD in the same way you would any employee who may have any other physical or mental impairment. Doing so will ensure that you treat the employee as the law requires and will reduce the likelihood that your company will be sued for discrimination.