Real World Impact: This article is a continuation of a series of Alerts providing guidance for employers on handling mental health issues in the workplace and specifically addresses issues that relate to neurodiversity and employees who self-identify as neurodivergent.
Introduction
As noted in our August 22, 2024 Alert, U.S. employers have been contending with a significant increase of employee mental health issues over the last 10-15 years. In the last few years, you may have encountered the terms “neurodiversity,” “neurodivergent,” and “neurotypical,” and wondered what they mean and how they relate to the handling of mental health issues in the workplace. This article provides insight to employers on both counts.
The term neurodiversity was coined by sociologist Judy Singer in the late 1990’s. It refers to the unlimited variations of the human brain and has most frequently been used with respect to autism advocacy. Recently, others began using this term and the term neurodivergent to describe people whose biological/brain hard wiring differences affect how their brains process information. One thing to know is that the term neurodivergent is not a medical term or diagnosis. It also includes a wide variety of conditions or diagnoses including autism spectrum disorder (ASD), attention-deficit hyperactivity disorder (ADHD), dyslexia, Down syndrome, obsessive-compulsive disorder, bipolar disorder, sensory processing disorder, and others. In contrast, the term neurotypical is used to describe someone with thinking or processing patterns considered to be typical or standard when compared to peers. It is estimated that approximately twenty percent of the population falls under the term neurodivergent, and the rate of ASD is 2.85 percent in the United States.
The term neurodivergent is an identifier that is thought to lead with positivity and focuses on differences in abilities, as opposed to deficits. In part due to the thought that the term leads with positivity, you may hear individuals refer to themselves as neurodivergent, especially in the workplace as many people have concerns about discussing their diagnosis in the work setting. However, other advocates disagree with the use of “divergent” versus “diverse.” Still others see it as downplaying the significant struggles and need for accommodations that individuals with a corresponding diagnosis need to be successful in educational and workspaces. There is also some discussion of whether such terms and the focus on differing abilities and strengths of people that fall within the neurodivergent umbrella furthers existing misconceptions (e.g., people with ASD all have some genius level talent or skill). Some individuals prefer terminology that is more focused on the individual, such as being described as “a person with autism” or “an autistic person.”
In the Workplace
As a preliminary matter, analysis under the Americans with Disabilities Act, as amended, (ADA) focuses on an applicant or employee’s ability to perform his/her essential job functions with or without reasonable accommodation. Making assumptions about whether an applicant or employee can appropriately perform his or her job duties based on any ADA-protected disability or perceived disability will inevitably lead to bad decisions and legal liability exposure. Accordingly, when navigating neurodivergent conditions such as ASD, ADHD, dyslexia, etc., the focus needs to be on whether the employee retains limitations that impair his/her ability to perform his/her job functions based on their neurodivergence, what those limitations are, what reasonable accommodation(s) might help the employee successfully perform the essential job functions, and understanding that the need for accommodations may fluctuate depending on various factors. To the extent it is necessary or appropriate to discuss the specific diagnosed condition, it will be helpful to use terminology the employee is comfortable with and not assume that he/she wants to be referred to as neurodivergent or neurodiverse.
Second, the ADA as well as the Family and Medical Leave Act (FMLA) will apply the same as with any other request for accommodation. Determining the nature of what accommodation(s) are reasonable for a neurodivergent employee will depend on the specific limitations created by the diagnosis. Such accommodations will vary based on the specific limitations and needs of an employee and even among employees with the same diagnosis. In working with clients who are navigating such issues, we commonly encounter scenarios in which employees with ASD or ADHD may not be able to work productively when they are required to engage in frequent social interaction and/or their workstation is near a noisy or busy area or when there are other outside noises. Possible accommodations for these issues are being intentional about the timing and frequency of social interactions, moving an individual’s workstation to a less busy part of the office, allowing the individual to wear noise canceling headphones, or allowing the individual to work from home on days or portions of days when noise levels cannot be mitigated.
Many neurodiverse employees bring valuable skill sets to the table. Often, the challenge is creating a work environment in which such an employee can be productive. Human resource teams and managers should specifically tailor their engagements with neurodivergent individuals to accommodate the employee’s specific learning and communication styles, as many times they will differ from the general employee population. For instance, rounds of interviews that are social in nature and involve long question and answer sessions with multiple people may be the best way to interview and hire for an outside sales representative position. However, it may not necessarily be the best way to evaluate an applicant for an accounting position, especially a neurodivergent applicant—unless that accounting position requires frequent team interaction and public presentations, in which case the ability to frequently and effectively interact with others is truly an essential job requirement. Such steps will not only help a company recruit and retain diverse skill sets and ways of thinking that contribute to the company’s success but can also help retain and grow employees across time based on their strengths, thus preventing turnover and loss of investment in your employees.