Legal Rights: Higher Education and the Workplace (WWK 14 short version)
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WWK refers to the What We Know series of information sheets on ADHD. See the complete list. See the PDF version of this sheet.
People with ADHD often seek special considerations at work or in college to help them reach their full potential and achieve success. These considerations are called accommodations. This information sheet provides an overview of the laws and protections for people with ADHD who seek accommodations in these areas.
This sheet will:
- explain how two federal laws protect people with disabilities from discrimination;
- describe what the requirements are to get protections under these laws; and
- explain how the laws are applied in higher education and the workplace.
The two federal laws are the Rehabilitation Act of 1973 (RA) and the Americans with Disabilities Act of 1990 (ADA) which includes new provisions known as the ADA Amendments Act of 2008 (or ADAAA). Some state laws may go further than these federal laws in that they are stricter in protecting a person with disabilities; some people can be covered under such protections.
RA and ADAAA: Where do they apply?
The RA forbids discrimination in:
(1) Employment by the executive branch of the federal government;
(2) Employment by most federal government contractors; and
(3) Activities, companies, and organizations funded by federal subsidies or grants. This includes all public elementary and secondary schools, many private schools, and most colleges and universities. The RA is often referred to as "Section 504" in this context because that is the part of the law which refers to discrimination.
The ADAAA extends the RA to:
(1) Private companies with 15 or more workers;
(2) All activities of state and local governments, including employment and education; and
(3) "Places of public accommodation," including most private schools and higher education institutions.
Religiously controlled educational institutions that do not receive government funding are not covered by this law.
How does ADAAA expand rights for people with disabilities?
The ADAAA overturned earlier Supreme Court rulings that had made it more difficult for people to receive accommodations. It restored the original intention of the ADA. The ADAAA is sometimes called "ADA and its Amendments." The terms ADA and ADAAA are sometimes used interchangeably in this sheet, unless specified otherwise. Some key improvements were made that could favor adults with ADHD who seek accommodations in higher education or the workplace. They include, but are not limited to:
- Previously, if a person had a disabling condition but was doing better with help or treatment, he or she would not be considered for accommodations because of this. Help or treatment can include medication, assistive technology and psychotherapy. The ADAAA forbids this; the positive ("ameliorative") effects of treatments or interventions may not influence a decision on whether a person is disabled under the law.
- The burden that a person faces because of treatment (for example, the unpleasant side effects from a medication, visits to a doctor, insulin injection breaks for a diabetic) can now be taken into account in the determination of whether a person is disabled.
- A person does not have to be suffering from the symptoms of the condition or disability all of the time in order to be considered for accommodations. As explained below, some people have conditions that can flare up for a period of time, and then not be present for another period of time.
I have ADHD. Am I eligible for accommodations?
You are not automatically entitled to accommodations because you have a diagnosis of ADHD from a healthcare provider. Rather, you have to meet these conditions:
- You are considered to be an individual with disabilities under the law;
- You are qualified for the position or degree program you seek whether or not you get reasonable accommodations;
- You are being excluded from a job or educational institution solely by reason of your disability; and
- You are covered by the applicable federal law.
What should a person with ADHD know about the RA and ADAAA?
There are some legal terms that anyone seeking accommodations should be familiar with in order to understand these laws and how they apply to someone with ADHD.
- Disability: Under federal law, a person with a disability is
"Any individual who has a physical or mental impairment that substantially limits one or more of the major life activities of such individual, has a record of such an impairment, or is regarded as having such an impairment."
"Physical or mental impairment" is defined as
"Any mental or psychological disorder, such as an intellectual disability, organic brain syndrome, emotional or mental illness, and specific learning disabilities."
ADHD is not mentioned by name in the regulations implementing these laws. However, it has been recognized in court cases as a "mental or psychological disorder." Therefore, it is covered, so long as it is severe enough to meet the laws' standards of "impairment" in a major life activity.
The ADAAA covers disabilities involving episodic impairments (meaning that sometimes the symptoms are present and sometimes they're not), and impairments that are in remission (meaning that the symptoms or difficulties are not present for the time being), and considers these as disabilities if, when fully active, the symptoms/difficulties would "substantially limit" a person in "a major life activity." Examples of episodic impairments are epilepsy, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. Impairments that are chronic (meaning that the person always has them) with symptoms or effects that are episodic (that come and go, or flare up) are also covered.
- Substantially Limits: The effect of the impairment on a person must be substantial. In order to determine what substantial means, the laws determine how impaired a person is. To determine impairment, the laws compare the individual seeking accommodations with most people in the general population. In recent years, Congress made reforms to add protections to people with disabilities that some Supreme Court rulings had created.
- Major Life Activity: Major life activities include abilities that most of us do every day. They include activities related to self-care, including the ability to groom and feed oneself; as well as the ability to perform manual tasks, walk, see, hear, speak, breathe, learn, and work. They also refer to the ability to read, concentrate, think, communicate, and interact with others. Other abilities listed include "major bodily functions" such as brain functions, and disruptions to the operation of an individual organ within a body system. For example, diabetes substantially limits the body's ability to process food and use it as energy, while muscular dystrophy substantially limits the brain's ability to control muscle movement. Mental disorders such as depression, bipolar disorder, post-traumatic stress disorder, obsessive compulsive disorder, and schizophrenia substantially limit the proper functioning of the brain.
For adults with ADHD, the major life activities usually most affected are learning and work. Many adults with ADHD are talented and capable, but may have difficulty performing as quickly or as efficiently because of the disorder and might need accommodations. The RA and ADAAA may still protect them. The rules that determine how the RA and ADAAA are carried out say that the "condition, manner, or duration" of an individual's performance of a major life activity may help to determine if the person is disabled. This means that, if a person is slower at performing a task or has to spend extra time and effort because of a disability, he or she can be still considered impaired under the law. Someone with a learning disability may get very good grades in college, but the fact that he had to spend extra time and effort because of the disability in reading, writing, etc. means that he remains "substantially limited" in the major life activity of learning, under these laws. In order to be substantially limited in the major life activity of working, the impairment must prevent the person from performing an entire class of or broad range of jobs, not just one job.
- Qualified: The term "qualified" in this context refers to a person who meets the standard of skills, experience and education for a job or institution of higher learning and can perform the essential functions of such a position or school program with or without accommodations.
- Reasonable Accommodations:
In higher education: Under federal law, accommodations being sought at work or in higher education must be reasonable. Examples of reasonable accommodations include note-taking assistance, extended time, and/or an individual room for taking tests and examinations. Examples of accommodations that may not always be legally required include foreign language or mathematics requirement waivers or course substitutions. If the educational institution can justify the need for mastery of a foreign language or mathematics in a particular course of study, then it can compel students with disabilities to meet this requirement. For example, if mastery of calculus is required for a college student wishing to major in physics, an individual with a learning disability or ADHD cannot be excused from these calculus classes on the basis of the disability. Colleges and universities that fall under RA and ADAAA are not required to make modifications in courses or examinations that would alter the essential nature of a program, as this would constitute an undue hardship on the institution.
In the workplace, the courts have ruled that what is reasonable depends on the job. In one legal case, a senior-level executive with ADHD requested a non-distracting workplace, multi-staged tasks, written instructions, intermediate deadlines, a single supervisor, and assistance in setting up a time management system. The court denied these accommodations, ruling that senior-level employees must be able to exercise independent judgment and juggle tasks when necessary. Such accommodations may be reasonable for junior level employees but not for senior employees. In another case, a school district required that its teachers take turns driving school buses. A qualified teacher who had a disability that prevented him from driving was denied a job and took legal action. The court ruled that since driving a school bus was not an essential part of teaching, the school district could not deny the otherwise qualified teacher a job because he could not drive a school bus.
In addition to being reasonable, a requested accommodation must be specific. For example, "reduced stress" in the workplace would not be reasonable because the employer would not be able to control all of the factors that produce stress in an employee. Finally, an employee must show that there is a need for the accommodations based upon the disability; she cannot ask for a day shift rather than a night shift simply because she prefers it.
What Documentation is Required?
A simple note by a doctor or mental health professional saying that a person has ADHD may not be enough to qualify that person for accommodations under RA or ADAAA. Ideally, the report should provide the following information:
- A clearly identified clinical diagnosis.
- A description of how the diagnosis impairs the person's ability to perform in one or more major life activities.
- The report should compare the individual's ability to perform the identified major life activity to the same major life activity as performed by most people in the general population.
- The report should demonstrate that the individual is qualified for the job or educational program, despite the disability.
- The report should recommend specific accommodations necessary to address the disability described, showing why these accommodations are necessary and how they are reasonable.
What are the obligations of people seeking accommodations?
In the workplace, the laws against discrimination apply to recruitment, advertising and job application processes, hiring, upgrading, promotion, awarding of tenure, discharge, demotion, transfer, layoff, rehiring, compensation, leave, and various benefits. To be eligible for such protections, an employee must tell the employer about the disability. Adults with ADHD can often successfully obtain accommodations by coming to an informal agreement with an employer. Many workplaces may welcome reasonable accommodations that can improve an employee's performance.
Students requesting accommodations in college are responsible for disclosing the disability to the educational institution, and showing that they are qualified for the program to which they are applying. Colleges and universities are under no obligation to seek out students with disabilities. Prospective students should contact the office of student services or disability services of the institution they are interested in attending. Accommodations are not a guarantee; chances of obtaining accommodations are higher if a student has a record of receiving accommodations in high school. Students who received 504 Plans or an Individualized Education Plans in high school should present school records documenting this.
The information provided in this sheet is supported by Cooperative Agreement Number 5U38DD000335 from the Centers for Disease Control and Prevention (CDC). The contents are solely the responsibility of the authors and do not necessarily represent the official views of CDC. It was originally approved by CHADD'ss Professional Advisory Board in May 2003, and subsequently in 2012.
© 2013 Children and Adults with Attention-Deficit/Hyperactivity Disorder (CHADD).
For further information about ADHD or CHADD, please contact:
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Landover, MD 20785
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