Q: Hi What legally can happen if I choose to treat my ADD and I need accommodations?

A: Generally, if you have no employment contract, you are not union represented, nor do you work for the government, you are considered "at will." The overwhelming majority of employees across the entire United States are "at will." That means that they can be fired for a good reason, a bad reason, or no reason at all.

We, employment lawyers, have to prove discriminatory motivation or motive to prove discrimination. That is never easy to do even with strong facts. Why? Because employers who have legitimate, non-discriminatory reasons to fire employees are often not liable for damages if discrimination played no part in their decision to terminate an employee.

How does that affect you? Well, you implied that maybe your ADD was controlled with medication years ago. Or maybe it was never effectively controlled with medication? Your facts don't really tell us which one applies. Let's assume that if you are back on medication, you regain your focus and can perform satisfactorily. Problem solved. Just like a person with hypertension, if you can perform the essential functions of your job without accommodation then how would a disability law protect you? What accommodation would you need in that scenario? I can think of a few.

For example, you are functioning well with medication but you need time to see your doctor or you can only refill your medication during normal work hours. In those situations your employer "might" have to allow you time off work in order to see the doctor or to refill meds if you follow the employer's procedures.

The very first thing any lawyer would need to ask you would be:

1) How has your performance been? Are you on a performance improvement plan or have you been warned that your performance is not meeting expectations? In that case, asking for an accommodation when the employer already has documented poor performance might be problematic. Remember, they can fire you for a legitimate, non-discriminatory reason, if you are "at will."

2) What does your employer's handbook say about accommodations, etc...? If the handbook spells out what you needed to do and you failed to do so, how will you explain that? Every employee needs to comply with policies and procedures.

3) What was the reason that you chose to discontinue medication when it apparently was helping you? Some reasons might be good reasons while others will not. The expired IEP will need to be addressed as well.

4) What other health conditions might you have?

5) What specific job duties are you performing and have those caused or contributed to other conditions which might be workers compensation? Those are different type of claims best left to lawyers who focus on work comp. They are a highly technical area of their own.

As you see, none of this is easy or straight forward. Asking for an accommodation when you are already on the verge of termination (if that is the case which you do not expressly state?) might not be the best choice?

You should reach out to many employment lawyers. I have quite a few videos which I call Employment Law Reality Check on YouTube. I think there are more than 50. And in each one I suggest that employees call many employment lawyers before retaining one. Why? Because no lawyer is the right lawyer for everyone. Employment law is extremely fact based. Federal court decisions are highly detailed and there are often many non-discriminatory reasons raised by employers. So before any employee prepares to potentially litigate any employment discrimination matter they need to have their facts lined up.

Good luck. Be well and choose wisely. Most of us try to help employees keep or save their jobs. Litigation is the last resort. Every employee has a duty to mitigate damages. That means they must keep looking for work. We are still in a pandemic. Finding a new job is always easier while you are still employed. Even highly skilled and well-trained employees are struggling. Act reasonably.