November 4, 2008
Joyce Wilson Harley, Esq.
Administrator
County of Essex
Hall of Records, Room 510
Newark, NJ, 07102
Re: ADA Applicability to Discipline
Dear Ms. Wilson Harley:
Recently, CWA Local 1081 has represented in disciplinary hearings members of our Union whom respectively suffer from different medical afflictions that our Union has maintained adversely affected their ability to perform fully all of their job functions. In our Union’s defense of these members, in our attempt to obviate or least mitigate the County’s proposed measures of discipline, CWA Local 1081 has raised the Americans with Disabilities Act (ADA) as being pertinent, and indeed essential, to our arguments made upon these members’ behalf.
As you are no doubt aware, the ADA defines “disability” as a physical or mental impairment that substantially limits one or more “major life activities,” such as walking, seeing, hearing, or learning. Having a diagnosed impairment, such as Attention-deficit/hyperactivity disorder (ADHD), for example, does not necessarily mean that an individual is disabled within the meaning of the ADA.
The ADA does provide for "mental" conditions or mental illnesses, and potentially ADHD fits in this category. But as with physical impairments, the diagnosis of a mental illness or mental impairment such as ADHD is not sufficient by itself to qualify for protection under ADA. Again, having a “diagnosis” is not the same as having a “disability.”
These two cases seem to expand the definition of “major life activities” to include concentration and cognitive functions:
· Brown v. Cox Medical Centers (8th Cir. 2002), where reportedly the court stated that the "ability to perform cognitive functions" is a major life activity;
· Gagliardo v. Connaught Laboratories, Inc. (3d Cir. 2002), where reportedly the court held that "concentrating and remembering (more generally, cognitive function)" are major life activities.
But the courts have placed limitations on the scope of the Act as well, and have not just tried to accommodate everyone with ADHD. The court has its limits, and they have ruled that the ADA has its limits.
For example Knapp v. City of Columbus (2006 U.S. App. LEXIS 17081) is the story of three firefighters with ADHD who wanted the City to make accommodations for them in their jobs. The U.S. Court of Appeals for the Sixth Circuit declined to extend ADA coverage to three firefighters who had Attention Deficit Hyperactivity Disorder.
Three firefighters had claimed that ADHD substantially limited their ability to learn, so the City should make accommodations for them. But the court held that the firefighters failed to establish that their ADHD met the standards to qualify as a disability under the ADA.
A very important limitation of Act involved a ruling from an earlier Supreme Court case with Toyota in 2002 which the Sixth Circuit Court used in this case with the firefighters. The Sixth Circuit applied the U.S. Supreme Court’s test in Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).
Under the Toyota Motor ruling the courts must consider whether the person making the claim is unable to perform the variety of tasks central to most people’s daily lives, not whether the claimant is unable to perform the tasks associated with his or her specific job.
When applying this test, the Sixth Circuit wrote that when a person who is seeking protection or accommodations under the ADA can fully compensate for impairment through medication, personal practice, or an alteration of behavior, a “disability,” as defined by the Disabilities Act, does not exist.
In other words, if an adult with ADHD can “get the task done” or “get the job done” by using medications, applying behavioral management techniques, receiving counseling, using biofeedback, using Attend, or other treatment interventions, then they do not have a disability that is protected under the ADA.
In this court case, all three firefighters testified that taking Ritalin controlled their symptoms, and that they were able to fulfill their family and work obligations. Thus, an ADA disability was not found.
Also, it seems that as a result of this ruling, employers under the Sixth Circuit do not need to make accommodations for employees with ADHD under these conditions:
1. When the disorder has not been shown to substantially impair their ability to perform tasks central to daily life;
2. When the ADHD symptoms can be improved by medication or other treatments.
The following is a list from a major university of the conditions that must be met for ADHD to qualify for coverage and protection under the American with Disabilities Act of 1990:
§ The ADHD must cause significant impact or limitation in a major life activity or function;
§ The individual must be regarded as having a disability;
§ The individual must have a record of having been viewed as being disabled;
To establish that an individual is covered under the ADA, documentation must indicate that a specific disability exists and that the identified disability substantially limits one or more major life activities. Documentation must also support the accommodations requested.
6. The evaluation must be conducted by a qualified professional, such as psychologist, neuropsychologist, psychiatrist, or other medical doctor who has had comprehensive training in the differential diagnosis of ADHD and direct experience with an adult ADHD population. The name, title, and professional credentials of the evaluator should be clearly stated. All reports should be on letterhead, typed, dated, signed and otherwise legible.
7. Documentation must be current. The diagnostic evaluation must adequately address the individual’s current level of functioning and need for accommodations. In most cases, the evaluation must have been completed in the last three years.
CWA Local 1081 cites the university’s abovementioned testing recommendations, requisite to qualify as an individual with a disability under the meaning of the Act, in order to illustrate the County’s untenable position and past practice in this regard. Our member suffering with ADHD and being disciplined for ostensive deficient job performance is just one example of the County of Essex’s disciplinary process failing them, for no such testing had been either recommended or required by the County of the employee prior to management’s consideration of a punitive “sentence” of minor discipline in the guise of a suspension of five or fewer days. The same applies to another member disciplined, as she suffers from severe Sleep Apnea.
In the latter matter, involving our Sister whom has been employed with the County for twenty years as a Clerk Typist-Bilingual, the County seeks to terminate her employment due to alleged bouts of brief episodes of workplace dozing precipitated by her condition. During the course of the major disciplinary hearing, the doctor employed by the County to in part evaluate employees for their continued job fitness in such circumstances admitted under oath that our member was not, in his educated and experienced opinion, following the correct protocols in order to lessen the adverse affects of her affliction (such as one medication she was prescribed by her personal physician and the frequency with which she should have taken the drug). Yet, with all due respect, the doctor performed a relatively epigrammatic and elementary physical evaluation of her condition before ruling her unfit for duty. Subsequently, our member was immediately suspended without pay subject to a disciplinary hearing that was held some nearly thirty days later with the hearing officer’s recommendation as of yet outstanding. Meanwhile, our member, whom has been supporting two children in college as well as a disabled husband (who is ineligible for SSI due to his wife’s now threatened relatively meager salary), faces the foreclosure on the family’s house due to the County’s deficient and discriminatory dictates.
CWA Local 1081, therefore, respectfully requests the County convene expeditiously a Labor/Management Committee charged with the responsibility of reviewing the issue of the disciplining of disabled employees with the goal of evaluating and recommending the remediation of the prejudiced processes now in place.
Sincerely,
David H. Weiner, President
CWA Local 1081
C: Hon. Joseph DiVincenzo
Phil Alagia
Alan Abramowitz
Anibal Ramos
Bruce Nigro
Yvonne Davis
Courtney Gaccione, Esq.
Hetty Rosenstein
Lynn Buckley