EPILEPSY IN THE WORKPLACE AND THE AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act (ADA) is a federal law that prohibits
discrimination against individuals with disabilities. Title I of the ADA covers employment by private employers with 15 or more employees as well as state and
local government employers of the same size.

Section 501 of the Rehabilitation Act provides the same protections for federal employees and applicants for
federal employment. In addition, most states have their own laws prohibiting
employment discrimination on the basis of disability. Some of these state laws
may apply to smaller employers and provide protections in addition to those
available under the ADA.

The U.S. Equal Employment Opportunity Commission (EEOC) enforces the
employment provisions of the ADA. This document explains how the ADA might apply
to job applicants and employees with epilepsy.⁽¹⁾
Topics discussed include:

• when epilepsy is considered a disability under the ADA;
• when an employer may ask an applicant or employee questions about epilepsy
  and how it should treat voluntary disclosures;
• what types of reasonable accommodations employees with epilepsy may need;
• how an employer should handle safety concerns about applicants and employees
  with epilepsy; and
• how employers can ensure that no employee is harassed because of epilepsy or
  any other disability.

General Information About Epilepsy

About 2.3 million people in the United States or one percent of the
population have some form of epilepsy, with more than 180,000 new cases
diagnosed each year in Americans of all races and ages.⁽²⁾ Epilepsy is a general term that includes various
types of seizures. A seizure happens when abnormal electrical activity in the
brain causes an involuntary change in body movement or function, sensation,
awareness, or behavior. People diagnosed with epilepsy have had more than one
seizure, and they may have had more than one kind of seizure. A seizure can last
from a few seconds to a few minutes. Some individuals recover immediately from a
seizure, while others may be dazed and sleepy for a period of time following a
seizure. The severity of epilepsy and the type of seizure vary from person to
person.⁽³⁾ For most people with epilepsy, no
single cause has been determined. Seizures may result from illness (including
high fever), head trauma, stroke, brain tumor, poisoning, infection, inherited
conditions, brain disorders, or problems during fetal development.

Individuals with epilepsy successfully perform all types of jobs, including
heading corporations, teaching and caring for children, and working in retail
and customer service positions. Individuals with epilepsy also can perform jobs
that might be considered “high-risk,” such as police officer, firefighter,
welder, butcher, and construction worker. Yet, many employers wrongly assume
that people with epilepsy automatically should be excluded from certain jobs.⁽⁴⁾ For example, many employers believe that anyone
with epilepsy cannot safely operate certain types of machinery, drive, or use
computers.⁽⁵⁾ The reality is that because
antiseizure medications and other treatment methods totally control seizures for
more than half of the people with epilepsy, many employers do not know when
someone in the workplace has this condition. Some people whose epilepsy is not
completely controlled experience a sensation or warning called an “aura” that
lets them know that they are about to have a seizure. Many other people with
epilepsy only have seizures while asleep (nocturnal seizures) or seizures that
do not cause loss of consciousness or motor control.

Some employers also fear hiring individuals with epilepsy because they are
concerned about higher workplace insurance rates or believe that employees with
epilepsy will use a lot of sick leave. Workplace insurance rates, however, are
determined by how hazardous the type of work is and by an employer’s overall
claims record in the past, not by the physical condition of individual
employees. There is no evidence that people with epilepsy are more prone to
accidents on the job than anyone else. Finally, because medications usually can
control seizures for most people, they do not need to take time off from work
because of their epilepsy.

1. When is epilepsy a disability under the ADA?

Epilepsy is a disability when it substantially limits one or more of a
person’s major life activities. Major life activities are basic activities that
an average person can perform with little or no difficulty, such as walking,
seeing, hearing, speaking, breathing, performing manual tasks, caring for
oneself, learning, and working. Major life activities also include thinking,
concentrating, interacting with others, reproduction, and sleeping.

Epilepsy may be a disability because of limitations that occur as the result
of seizures or because of side effects or complications that can result from
medications used to “control” the condition.

Epilepsy also may be a disability because it was substantially limiting some
time in the past (i.e., before seizures were controlled).

Finally, epilepsy is a disability when it does not significantly affect a
person’s everyday activities, but the employer treats the individual as if it
does.

Under the ADA, the determination of whether an individual has a disability is
made on a case-by-case basis.

OBTAINING, USING, AND DISCLOSING MEDICAL INFORMATION

Applicants

The ADA limits the medical information that an employer can seek from a job
applicant. An employer may not ask questions about an applicant’s medical
condition or require an applicant to take a medical examination before it makes
a conditional job offer. This means that an employer cannot ask an
applicant questions such as:

• whether she has epilepsy or seizures;
• whether she uses any prescription drugs; or
• whether she ever has filed for workers’ compensation or was injured on a
  job.

After making a job offer, an employer may ask questions about an applicant’s
health and may require a medical examination as long as it treats all applicants
the same.

2. Does the ADA require an applicant to disclose that she has
epilepsy or some other disability before accepting a job offer?

No, the ADA does not require applicants to disclose that they have epilepsy
or another disability unless they will need a reasonable accommodation for the
application process. Some individuals with epilepsy, however, choose to disclose
their condition to eliminate any surprise should a seizure occur in the
workplace. Often the decision to disclose depends on the type of seizure a
person has, the need for assistance during or after a seizure, the frequency of
seizures, and the type of work for which the person is applying.

Sometimes the decision to disclose depends on whether an individual will need
a reasonable accommodation to perform the job. A person with epilepsy, however,
may request an accommodation after becoming an employee even if she did not ask
for one when applying for the job or after receiving the job offer.

3. May an employer ask any follow-up questions if an applicant
voluntarily reveals that she has epilepsy?

If an applicant voluntarily discloses that she has epilepsy, an employer only
may ask two questions: whether she needs a reasonable accommodation, and if so,
what type. The employer also must keep any information an applicant discloses
about her medical condition confidential. (See “Keeping Medical Information
Confidential” on p. 8.)

4. What should an employer do when it learns that an applicant has
epilepsy after he has been offered a job?

The fact that an applicant has epilepsy may not be used to withdraw a job
offer if the applicant is able to perform the fundamental duties (“essential
functions”) of a job, with or without reasonable accommodation, without posing a
direct threat to safety. (“Reasonable accommodation” is discussed in Questions
10 -15. “Direct threat” is discussed in Questions 5, 6, 16, and 17.) The
employer, therefore, should evaluate the applicant’s present ability to perform
the job effectively and safely. After an offer has been made, an employer also
may ask the applicant additional questions about his epilepsy, such as whether
he takes any medication; whether he still has seizures and, if so, what type;
how long it takes him to recover after a seizure; and/or, whether he will need
assistance if he has a seizure at work.

The employer also could send the applicant for a follow-up medical
examination or ask him to submit documentation from his doctor answering
questions specifically designed to assess the applicant’s ability to perform the
job’s functions and to do so safely.

Employees

5. When may an employer ask an employee if epilepsy, or some other
medical condition, may be affecting her ability to do her job?

An employer may ask questions or require an employee to have a medical
examination only when it has a legitimate reason to believe that epilepsy, or
some other medical condition, may be affecting the employee’s ability to do her
job, or to do it safely.

On the other hand, when an employer does not have a reason to believe that a
medical condition is causing an employee’s poor job performance, it may not ask
for medical information but should handle the matter as a performance
problem.

An employer also may ask an employee about epilepsy when it has a reason to
believe that the employee may pose a “direct threat” (i.e., a significant risk
of substantial harm) to himself or others. An employer should make sure that its
safety concerns are based on objective evidence and not general assumptions.
(See also section below on “Concerns About Safety.”)

6. May an employer require an employee on leave because of epilepsy
to have a medical exam or provide documentation before allowing her to return to
work?

Yes, if the employer has a reasonable belief that the employee may be unable
to perform her job or may pose a direct threat to herself or others. However,
the employer may obtain only the information needed to make an assessment of the
employee’s present ability to perform her job and to do so safely.

7. Are there any other instances when an employer may ask an employee
about epilepsy?

An employer also may ask an employee about epilepsy when the employee has
requested a reasonable accommodation because of his epilepsy or as part of a
voluntary wellness program.⁽⁷⁾ In addition, an
employer may ask an employee with epilepsy to justify the use of sick leave by
providing a doctor’s note or other explanation, as long as it requires all
employees to do so.

Keeping Medical Information Confidential

With limited exceptions, an employer must keep confidential any medical
information it learns about an applicant or employee. An employer, however,
under certain circumstances may disclose to particular individuals that an
employee has epilepsy:

• to supervisors and managers, if necessary to provide a reasonable
  accommodation or meet an employee’s work restrictions;
• to first aid and safety personnel if an employee would need emergency
  treatment or require some other assistance if she had a seizure at work;⁽⁸⁾
• to individuals investigating compliance with the ADA and similar state and
  local laws; and,
• as needed for workers’ compensation or insurance purposes (for example, to
  process a claim).

8. May an employer explain to other employees that their co-worker is
allowed to do something that generally is not permitted (such as have more
breaks) because he has epilepsy?

No. An employer may not disclose that an employee has epilepsy or is
receiving a reasonable accommodation. However, an employer certainly may respond
to a question about why a co-worker is receiving what is perceived as
“different” or “special” treatment by emphasizing that it tries to assist any
employee who experiences difficulties in the workplace. The employer also may
find it helpful to point out that many of the workplace issues encountered by
employees are personal and it is the employer’s policy to respect employee
privacy.

9. If an employee has a seizure at work, may an employer explain to
other employees or managers that the employee has epilepsy?

No. Although the employee’s co-workers and others in the workplace who
witness the seizure naturally may be concerned, an employer may not reveal that
the employee has epilepsy. Rather, the employer should assure everyone present
that the situation is under control. The employer also should follow the
employee’s plan of action if one has been created. (See footnote 8.)

An employer also may allow an employee voluntarily to tell her co-workers
that she has epilepsy and provide them with helpful information, such as how to
recognize when she is having a seizure, how long her seizures generally last,
what, if anything, should be done if she has a seizure, and how long it
generally takes her to recover. However, even if an employee voluntarily
discloses that she has epilepsy, an employer is limited in sharing this
information with others. (See section on “Keeping Medical Information
Confidential” above for the only circumstances in which an employer may disclose
that an employee has epilepsy.)

ACCOMMODATING EMPLOYEES WITH EPILEPSY

The ADA requires employers to provide adjustments or modifications to enable
people with disabilities to enjoy equal employment opportunities unless doing so
would be an undue hardship (i.e., a significant difficulty or expense).
Accommodations vary depending on the needs of an individual with a disability.
Not all employees with epilepsy will need an accommodation or require the same
accommodation, and most of the accommodations a person with epilepsy might need
will involve little or no cost.

10. What types of reasonable accommodations may employees with
epilepsy need?

Some employees may need one or more of the following accommodations:

• breaks to take medication
• leave to seek treatment or adjust to medication ⁽⁹⁾
• a private area to rest after having a seizure
• a rubber mat or carpet to cushion a fall
• adjustments to work schedules

• a consistent start time or a schedule change (e.g., from the night shift to
  the day shift)

• a checklist to assist in remembering tasks

Other employees with epilepsy may need:

• to bring a service animal to work ⁽¹⁰⁾
• someone to drive to meetings and other work-related events
• to work at home

Although these are some examples of the types of accommodations employees
with epilepsy commonly need, other employees may need different changes or
adjustments. An employer should ask the employee requesting an accommodation
because of his epilepsy what is needed to do the job. There also are extensive
public and private resources to help employers identify reasonable
accommodations. For example, the web site for the Job Accommodation Network
(JAN) (www.jan.wvu.edu/media/epilepsy.html)
provides information about many types of accommodations for employees with
epilepsy.

11. Does an employer ever have to reassign an employee with epilepsy
to another position?

Yes, reassignment may be necessary where an employee with epilepsy no longer
can perform his job, with or without reasonable accommodation, unless the
employer can show that it would be an undue hardship. The new position should be
equal in pay and status to the employee’s original position, or as close as
possible if no equivalent position is available. The new position does not have
to be a promotion, although the employee should have the right to compete for
promotions just like other employees.

12. How does an employee with epilepsy request a reasonable
accommodation?

There are no “magic words” that a person has to use when requesting a
reasonable accommodation. A person simply has to tell the employer that she
needs an adjustment or change at work because of her epilepsy.

A request for reasonable accommodation also can come from a family member,
friend, health professional, or other representative on behalf of a person with
epilepsy. If the employer does not already know that an employee has epilepsy,
the employer can ask the employee for verification from a health care
professional.

13. Does an employer have to grant every request for a reasonable
accommodation?

No. An employer does not have to provide an accommodation if doing so will be
an undue hardship. Undue hardship means that providing the reasonable
accommodation would result in significant difficulty or expense. If a requested
accommodation is too difficult or expensive, an employer still would need to
determine whether there is another easier or less costly accommodation that
would meet the employee’s needs.

14. Is it a reasonable accommodation for an employer to make sure
that an employee takes antiseizure medicine as prescribed?

No. Employers have no obligation to monitor an employee to make sure that she
does not have a seizure. However, an employer may have to provide a flexible
work schedule or allow the employee breaks to rest or to take medication to keep
her epilepsy under control.

15. If an employee does not have a license because of epilepsy, does
an employer have to eliminate driving from his job duties?

If driving is an essential function of a job, an employer does not have to
eliminate it. However, an employer should carefully consider whether driving
actually is a job function or simply a way of accomplishing an essential
function. If an accommodation is available that would enable an employee with
epilepsy to perform a function that most employees would perform by driving,
then the employer must provide the accommodation, absent undue hardship.

Similarly, if driving is a marginal (or non-essential) function, the fact
that an individual with epilepsy does not have a driver’s license cannot be used
to deny the individual an employment opportunity.

CONCERNS ABOUT SAFETY

When it comes to safety, an employer should be careful not to act on the
basis of myths, fears, generalizations, or stereotypes about epilepsy. Instead,
the employer should evaluate each individual on his knowledge, skills,
experience, and how having epilepsy affects him. In other words, an employer
should determine whether a specific applicant or employee would pose a
“direct threat” or significant risk of substantial harm to himself or others
that cannot be eliminated or reduced through reasonable accommodation. This
assessment must be based on objective, factual evidence, including the best
recent medical evidence and advances to treat and control epilepsy.

16. When may an employer prohibit a person who has epilepsy from
performing a job because of safety concerns?

An employer may prohibit a person who has epilepsy from performing a job when
it can show that the individual may pose a direct threat. In making a “direct
threat” assessment, the employer must evaluate the individual’s present ability
to safely perform the job. The employer also should consider: (1) the duration
of the risk; (2) the nature and severity of the potential harm; (3) the
likelihood that the potential harm will occur; and, (4) the imminence of the
potential harm. The harm also must be serious and likely to occur, not remote
and speculative. Finally, the employer must determine whether any reasonable
accommodation would reduce or eliminate the risk.⁽¹¹⁾

17. What should an employer do when another federal law prohibits it
from hiring anyone who has epilepsy?

The employer has a defense to a charge of discrimination under the ADA if a
federal law prohibits it from hiring a person with epilepsy. The employer should
be certain, however, that compliance with the law actually is required,
not voluntary and that the law does not contain any exceptions or waivers.

HARASSMENT

Employers are prohibited from harassing or allowing employees with
disabilities to be harassed in the workplace. When harassment is brought to the
attention of a supervisor, the supervisor must take steps to stop it.

18. What should employers do to prevent and correct harassment?

Employers should make clear that they will not tolerate harassment based on
disability or on any other basis (i.e., race, sex, religion, national origin, or
age). This can be done in a number of ways, such as through a written policy,
employee handbooks, staff meetings, and periodic training. The employer should
emphasize that harassment is prohibited and that employees should promptly
report such conduct to a manager. Finally, the employer should immediately
conduct a thorough investigation of any report of harassment and take swift and
appropriate corrective action. For more information on the standards governing
harassment under all of the EEO laws, see
www.eeoc.gov/policy/docs/harassment.html.

Footnotes

1. This document is the second in a series of fact sheets
issued by the EEOC that addresses a particular medical condition. The first fact
sheet, Questions and Answers About Diabetes in the Workplace and the ADA, can be
found at www.eeoc.gov/facts/diabetes.html.

2. Centers for Disease Control (CDC), www.cdc.gov/nccdphp/epilepsy/index.htm

3. For example, some seizures result only in small
involuntary movements or brief lapses of attention. In other instances,
consciousness (the ability to react to external stimuli in a meaningful and
appropriate way) may be unaffected, lost completely, or altered but not lost
completely. In addition, motor control may be partially affected (e.g., a
person’s hand may shake or she may be alert but cannot speak) or completely
lost.

4. Many occupations have their own health regulations. Some
federal laws may prohibit an employer from hiring an individual who still has
seizures or takes medication for epilepsy. See Question 17.

5. There is a rare condition called photosensitive epilepsy
in which seizures are triggered by flashing or flickering lights or by certain
geometric patterns. People who are photosensitive are most likely to react to
lights that flicker between five and 30 times per second. Modern computers
usually operate at a higher frequency and do not tend to provoke seizures.

6. Every state licenses people with epilepsy to drive,
though eligibility requirements vary. The most common requirement is that
individuals be seizure free for a specified period of time and submit a
physician’s evaluation of their eligibility to drive safely. Some states require
individuals with epilepsy to submit periodic medical reports for as long as they
remain licensed.

7. The ADA allows employers to conduct voluntary medical
examinations and activities, including obtaining voluntary medical histories,
which are part of an employee health program as long as any medical records
acquired as part of the program are kept confidential.

8. Although many individuals who have seizures do not
require any first aid or assistance, an employee who might need assistance may
want to work with his employer to create a plan of action that includes such
information as: who to contact in an emergency; warning signs of a possible
seizure; how and when to provide assistance; when to call an ambulance, etc. The
employee and employer also should discuss who in the workplace should know this
information. Some individuals also might want to ask their employers for an
opportunity to educate their co-workers about epilepsy to dispel any
misperceptions or unsubstantiated fears they may have about the condition.

9. An employee with epilepsy also may be entitled to leave
under the Family and Medical Leave Act (FMLA), which provides up to 12 weeks of
unpaid leave for a serious health condition. The U.S. Department of Labor
enforces the FMLA. For more information, go to http://www.dol.gov/whd/fmla/.

10. Service animals are animals that are trained to perform
tasks for individuals with disabilities such as guiding people who are blind,
alerting people who are deaf, pulling wheelchairs, alerting and protecting a
person who is having a seizure, or performing other special tasks.

11. If the individual is a current employee, reasonable
accommodation must include consideration of reassignment to a vacant position
for which the employee is qualified.

Source: EEOC.gov and our thanks to David Julian for posting this on Facebook and bring it to our attention.