Federal, state, and some local laws require employers of specific sizes or those receiving government funding to reasonably accommodate disabled employees. This may or may not include workers who are “neurodivergent.”
As a business litigation lawyer can explain, this refers to the fact there are practically limitless variations of the human brain. As a result, not everyone is a stellar reader. Some of us may become overwhelmed with what’s going on around us. Someone with deficits in one area may be greatly gifted in other mental aspects.
What Does “Neurodivergent” Mean?
“Neurodivergent” can describe those of us whose brain differs from what’s considered “normal” (or “neurotypical”), and this can impact many things. It’s not a medical term or diagnosis. It can cover people with the following conditions:
- Autism spectrum disorder (ASD)
- Attention-deficit hyperactivity disorder (ADHD)
- Dyslexia
- Down syndrome
- Obsessive-compulsive disorder
- Bipolar disorder, and
- Sensory processing disorder
It’s estimated that 19% of the US population, or nearly 64 million people, are considered neurodivergent.
Neurodivergent Employees And Accommodations
The federal Americans with Disabilities Act (ADA) and similar state and local laws address issues facing employers, applicants, and employees. To be qualified for legal protection, an employee must be able to perform their essential job functions with or without reasonable accommodation as our friends at Focus Law LA can share.
If you learn an applicant or worker is neurodivergent, you shouldn’t make assumptions about their abilities or deficits any more than if the person is Black, pregnant, or 50 years old. This prejudice and actions based on it can land a potential employer or employer in court facing discrimination claims.
An employer’s focus should be on the individual. You must consider the following:
- Does the person have limitations that may impair their ability to perform their potential or actual job?
- If so, what are those limitations? What reasonable accommodation(s) could help the person successfully perform essential job functions?
Generally, an employee must ask for an accommodation, but if you become aware of problems, you can propose one. The accommodation should be based on the individual’s abilities and what’s needed to do the essential parts of the job. It must also be reasonable and not present an undue hardship for the employer.
Performance issues may occur if frequent social interactions are involved or the work area is noisy or busy. Possible accommodations include working at home, changing or limiting social interactions, moving to a quieter area, or wearing noise-canceling headphones.
Accommodations And Co-Workers
You may find that some situations that are especially acute for a neurodivergent employee are problematic for everyone. How many of us can do our best in a noisy workplace that’s busy with people? Making changes to help one worker may end up aiding many others.
Employers and employees must communicate openly to determine what will work for everyone. Employers need to keep discussions confidential. If another employee asks about a co-worker’s accommodation, it’s none of their business whether the co-worker is disabled or how it impacts their work. If this employee wants changes to do their job better, you should be open to their suggestions.
Disability discrimination law can be complex. You must consider if someone’s disabled or not, whether an accommodation is needed (as opposed to wanted), and if it’s reasonable or subjects your business to an undue hardship. Talk to your attorney to help you make the best decisions.