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Patrick, Esq.
Patrick, Esq., Lawyer
Category: California Employment Law
Satisfied Customers: 6998
Experience:  Significant experience in all areas of employment law.
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good morning, I wanted to know if my company can let me go,

Resolved Question:

good morning,
I wanted to know if my company can let me go, for not having a servesafe certificate.
Or if I am not able to pass the exam because of AD/HD, (Attention Deficit/ hyperactivity disorder)??
Submitted: 2 years ago.
Category: California Employment Law
Expert:  Patrick, Esq. replied 2 years ago.
Hello and thank you for entrusting me to answer your question. My goal is to answer your question completely and thoroughly and to provide excellent service.

I am very sorry to hear about your employment situation and can certainly see why you regard it as unfair that your employment is on the line due to a test that your ADHD is preventing you from passing.

In general, an employer is free to terminate or refuse to hire an employee on the basis of him or her failing to obtain a particular certification. But it gets a little bit more complicated than this when a disability is involved.

The Americans With Disabilities Act prohibits discrimination of an employee on the basis of his or her "disability," and requires employers to engage in an interactive process with the employee to determine whether a "reasonable accommodation" for their disability can be arranged, thus allowing the employee to retain their employment.

As I'm sure you can well understand, not every impairment qualifies as a "disability," and thus, not all impairments are entitled to protection under the law. The determination of what constitutes a qualifying disability is a complex issue, but in general, in order to have a “disability” you must have a mental or physical condition that “significantly impairs a major life activity.”

According to the most recent Supreme Court decision, this analysis requires the courts to review whether the person is able to perform the tasks of daily living (washing, brushing teeth, fixing meals, housecleaning, etc.), and decide if the person is significantly more impaired in those tasks than other persons in the population who are not “disabled.” It also requires the courts to consider the person’s abilities with corrective devices, such as prostheses and medication, but may consider side effects that result from medication. For more information on what constitutes a qualifying disability, visit this link: http://www.ada.gov/qandaeng.htm

Even if your ADHD did qualify as a disability, an employer would still be permitted to require a certification for a test that you cannot pass if that test is essential to the position. The ADA does not not prohibit an employer from firing an employee who cannot perform the essential aspects of their position, and if an essential aspect of the position is obtaining a particular job cert, that termination on that basis would still typically be permissible.

So to summarize, an employer is regretfully free to terminate an employee who has ADHD that cannot pass a particular exam unless the employee can show that their ADHD qualifies as a "disability" and that the certification is not essential to the position. As you can imagine, these things would be very difficult to prove, but this is what would need to be shown to have any sort of protection under the law, generally speaking.

I sincerely XXXXX XXXXX this information helps you and I wish you the best.

If you do not have any further concerns, I would be very grateful if you would give my answer a positive rating and click submit, as this is the only way I will receive credit for assisting you. If you have any additional concerns that you would like me to address, please feel free to let me know by hitting the REPLY or CONTINUE CONVERSATION button and I will be more than happy to continue assisting you.

Finally, please bear in mind that none of the above constitutes legal advice nor is any attorney client relationship created between us.

Thank you and very kindest regards.
Patrick, Esq., Lawyer
Satisfied Customers: 6998
Experience: Significant experience in all areas of employment law.
Patrick, Esq. and 3 other California Employment Law Specialists are ready to help you

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