Attention Deficit Hyperactivity Disorder (ADHD) affects 4-6% of Canadian adults. Since it impacts the ability to regulate attention and focus, it can undoubtedly affect employment.
Employment Law and Accommodations for ADHD in the Workplace
So what have we observed in employment law related to accommodations for ADHD in the workplace? Is it a protected right? What types of accommodation might an employee have access to?
A 2023 Alberta case sheds some light on these questions. The employee (complainant) in this case was diagnosed with ADHD and gave examples of unequal treatment by their employer (respondent):
Examples of Unequal Treatment by the Employer
- Isolating her from the rest of the team by failing to provide her with a list of all the projects the team was working on.
- Excluding her from all projects that the team was working on, including email updates on projects and some team meetings.
- Assigning her work duties that were either irrelevant to the work of the department or for which she had no experience.
- Limiting her access to information by not returning her Excel spreadsheet that was removed from the workplace’s common drive and failing to provide her necessary information required to participate in a team meeting.
- Disciplining her for minor mistakes, such as sending non-critical work-related emails from her personal email account and saving draft correspondence in the wrong drive.
- Restricting the number of emails she could send to her supervisor, and indicating that if she misunderstood any direction given, she should “improvise to the best of [her] understanding.”
- Not assigning her to work in an area where she is a subject-matter expert.
- Changing her reporting structure so that, although she remained on the same team, she would no longer speak directly to her Manager – they could interact by email only if needed.
- Chastising and embarrassing her in front of her colleagues.
Employer’s Perspective on Performance Issues
From the employer’s perspective, they shared examples of the employee displaying poor performance, including significant attendance issues and failing to complete assigned tasks, either on time or at all.
These issues led to performance management conversations in which the employee requested a number of accommodations for ADHD in the workplace, some of which were provided such as note-taking, documentation of meetings and visual reminders to help with memory and organization.
The employee also requested to be transferred to a different department. However, this was not provided because the employer felt it was not reasonable or necessary since the employee would have the same limitations in any department. Instead, the employer offered the following as additional supports:
Additional Supports Offered by the Employer
- Coaching and HR assistance to the employee’s supervisor to help him learn how to communicate with the complainant in their preferred communication style.
- Allowing the complainant to work under a new supervisor.
- Involving a Director to provide direction to the complainant.
- Implementing a buddy system to provide the complainant with support from a peer.
- Providing the complainant with a “significant amount of training courses” and asking for the complainant to identify additional training that would support success.
Legal Protections and Duties to Accommodate ADHD in the Workplace
ADHD does fall under the Human Rights Act as a disability, which means an employer cannot discriminate and has a duty to accommodate to the point of undue hardship. The key questions in this case are:
- Did the employer discriminate against the employee due to their disability?
- Did the employer fail to provide accommodations for ADHD in the workplace to the point of undue hardship?
Initially, this complaint was dismissed by the Director of the Commission, who found there was no evidence of discrimination. However, following an application by the complainant, that dismissal was overturned by the Commission. Crucially, the Commissioner who heard the request to overturn the Director’s decision determined that while there was evidence of some accommodation, there was insufficient evidence to determine the employer accommodated the Complainant to the point of undue hardship. Due to the absence of evidence demonstrating an undue hardship on the employer, the Commissioner determined the complaint should be referred to the Tribunal.
Conclusion
Cases involving accommodations for ADHD in the workplace are complex, with precedents being set now for how decisions will be made. If you are experiencing challenges related to an ADHD diagnosis and your employment, reach out to us for a consultation.
Potential resource: https://caddac.ca/wp-content/uploads/Workplace-accomodations-Chart-FINAL.pdf