ADA & Epilepsy

Why are people with epilepsy (or seizure disorders) covered by the ADA?

In order to be covered under the ADA, an individual must be an “individual with a disability”. The definition of disability was taken from the Rehabilitation Act of 1973 which prohibits employment discrimination against individuals with handicaps by the federal government, and those employers who hold federal contracts or receive federal financial assistance.

The definition of disability is defined as an individual who has:

  1. A physical or mental impairment that substantially limits one or more of the major life activities of        an individual
  2. A record as such impairment
  3. Being regarded as having such an impairment.

Epilepsy is a disorder affecting the neurological system. Persons with seizure disorders, therefore, have a disability which falls within the first standard of the definition

Additionally, under the Rehabilitation Act individuals with epilepsy have been held to have a physical or mental impairment that substantially limits one or more major life activities. In addition, Congress made it clear in the ADA’s legislative history that, “whether a person has a disability should be assessed without regard to the availability of mitigating measures, such as reasonable accommodation or auxiliary aids.”  Congress specifically recognized that individuals with epilepsy have a disability which substantially limits a major life activity even when the effects of the impairment are controlled by medications.

FAQs about ADA & Epilepsy

What are the basic employment provisions of the ADA (Title I)?

Employers covered by the law are prohibited from basing employment decisions on assumptions, stereotypes, myths, or fears about an individuals disability. This is especially important for people with epilepsy because of the stigma that has surrounded the disorder. The law requires that, except in very limited circumstances, the capability of each person with a seizure disorder is evaluated on an individual basis. Individuals must be qualified to perform basic job duties, but may not be excluded from employment opportunities unless they are actually unable to perform the basic requirements of the job, with or without reasonable accommodation.

The ADA prohibits discrimination in an employer’s job application procedures, the hiring, advancement or discharge of employees, employee’s compensation, job training and other terms, conditions and privileges of employment.

What are the basic provisions of the ADA concerning state and local governments (Title II)?

Any agency of state of local government, including all services and programs of these entities, may not discriminate against people with seizure disorders. The standard has applied to the federal government and entities which receive federal funding since Section 504 of the Rehabilitation Act was passed in 1973. All covered entities must allow persons with epilepsy to participate in all their services with epilepsy to participate in all their services, programs, and activities in an integrated setting unless separate measures are necessary to ensure equal opportunity.

What are the Transportation standards under the ADA (Title II, Part 1 and 2)?

The ADA covers both public and private transit. All must adhere to general non-discrimination principals. Buses, light and rapid rail, ferries and AMTRAK are covered as well as private tour and charter companies, hotel shuttles and other private over-the-road companies.

What are the provisions for Public Accommodations under the ADA (Title III)?

Title III Protects individuals with disabilities from discrimination by any place of public accommodation. The discrimination prohibitions extend to requiring places of public accommodation to allow individuals with disabilities to participate fully and equally in the most integrated setting appropriate to the needs of the individual. Examples of places of public accommodation include:

  • Restaurants
  • Hotels
  • Theaters
  • Doctor’s offices
  • Retail stores
  • Museums
  • Libraries
  • Parks
  • Private schools
  • Daycare centers
What does the ADA require regarding telecommunications (Title IV)?
Telephone companies must provide telecommunications relay services which will permit speech or hearing-impaired individuals who use TDD’s, Tel-Tex or other assisted communications technology opportunities for equal access and use of systems.
Which employers are covered by the ADA and when do employment provisions take effect?
Employers who employ more than 25 employees were required to comply with the ADA b July 26, 1992. Employers with 15 or more employees were required to comply by July 26, 1994.
What are the basic standards of the ADA regarding the employment application process?

The ADA prohibits discrimination on the basis of disability in all phases of the job application process: forms, interviews, testing, and medical examinations. The ADA prohibits, at the pre-offer stage, inquiries of any kind regarding an individual’s disability, unless the inquiry is specifically related to the applicant’s ability to perform a job-related function.

An application form may NOT:

  • List various conditions and ask the applicant to check one if it applies to him/her.
  • Ask general questions such as, “Do you have a health condition that would affect your ability to do this job?”
  • Ask the applicant questions pertaining to his/her Worker’s Compensation history

An application form MAY:

  • Request that an applicant list any type of reasonable accommodation s/he may require during the application process.
What protections are provided by the ADA during the job interview?
An employer cannot ask any question that will require the applicant to disclose a disability. Questions regarding the applicant’s ability to perform job-related functions are permitted. If an applicant discloses that s/he has epilepsy, the employer may describe functions of a particular job and ask the applicant how s/he would perform those functions, with or without reasonable accommodation requested by the applicant.
How is it established that an applicant is a “qualified individual with a disability”?

A fundamental principle of the ADA is that an individual with a disability must be qualified to do the job. The ADA does not require that jobs be customized or tailored to meet the needs of an individual with a disability. The employer is never required to alter or adjust the basic prerequisites of a position in order to compensate for an applicant’s lack of education, skills or experience. In addition, the ADA does not require affirmative action of any kind.A qualified individual with a disability must satisfy the requisite skill, experience, education, and other job-related requirements of the position and must be able to perform the essential functions of the job with or without reasonable accommodation. This determination must be made at the time of the employment decision. Only the capabilities of the individual at the time of the employment decision must be evaluated. Speculation that the applicant may become unable in the future to perform the job’s essential functions cannot be used.

What are “essential job functions”?

Essential functions are job tasks that are fundamental, not marginal. A function is essential if:

  1. The reason the position exists is to perform the function
  2. There are a limited number of employees available among whom the performance of the job function can be distributed
  3. The function is so highly specialized that the incumbent in the position is hired for his or her expertise or ability to perform the particular function

Determining essential functions by categorical job types is not permitted under the ADA. A case-by-case factual determination must be made to establish whether a particular job function is essential or not.

What is “reasonable accommodation”?

Reasonable accommodation is defined as “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities”. Accommodations may be required to ensure equal opportunity in the application process, may be required to enable an employee with a disability to perform the essential duties of the job, or may be required to enable an employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by employees without disabilities.Most people with epilepsy do not require reasonable accommodation. However, types of reasonable accommodation that may be appropriate for individuals with seizure disorders include:

  • Job restructuring – i.e., redistributing non-essential, marginal job functions, such as driving, in cases where driving is not a central job requirement and may be performed by other employees.
  • Replacing a flickering light in an employees work area if the person’s seizures are triggered by such flashing lights.
  • Scheduling consistent work shifts to accommodate persons whose seizure activity is exacerbated by inconsistent sleep patterns
  • Allowing an employee who fatigues easily due to side effects of medication the opportunity to take more frequent breaks.
  • Allowing an individual to work a flexible schedule to accommodate his/her seizure activity or need to see a doctor.

It is the applicant or employee with epilepsy who is responsible for notifying the employer of his/her need for accommodation. An employer must only make reasonable accommodations for an individual’s known disability.

What are the basic standards of the ADA regarding medical examinations and drug testing?

The ADA prohibits an employer from conducting any type of medical examination of an applicant at the pre-offer stage. After a conditional offer of employment has been given, the employer may require a medical examination and may condition a final job offer on the results of such an examination if all entering employees in the same job category are required to undergo the examination regardless of disability. An employer may only require an employee to undergo a medical exam or inquiry if it is job-related and consistent with business necessity (e.g. to determine whether an employee is able to continue performing the essential functions of the job.)Certain jobs require periodic physical exams to determine fitness for duty. Some jobs require employees to meet federal, state or local medical standards. The ADA does not override these regulations.

Drug tests are not considered medical examinations under the ADA and are thus permitted at any stage of the application process (pre or post offer). However, an employer cannot use the results of a drug test to discriminate against individuals on the basis of disability. Requiring a drug test must not conflict with the right of applicants who take drugs under medical supervision, such as persons with seizure disorders, to not disclose their disability before a conditional offer of employment has been made.

How does the ADA affect the availability and administration of benefits which employers provide to employees?

The ADA’s employment requirements prohibit an employer from discriminating on the basis of disability in the provision of benefits. An employer is not obligated under the ADA to provide insurance benefits, but if the employer chooses to offer such benefits, an employee with a disability is entitled to the same amount of coverage as is provided to all other employees. Employees may continue to offer policies which exclude pre-existing conditions or which limit certain types of coverage. However, they may not exclude individuals with disabilities from all insurance benefits; nor may such pre-existing clauses be used  as a means of evading the purposes of the ADA.Employees may not refuse to hire applicants because of a feared or actual increase in insurance costs.

What must persons with epilepsy who feel they are not being treated fairly under the ADA show in a claim of employment discrimination?

To bring a valid claim under the ADA, the individual must prove that:

  1. She/he has a disability covered by the ACT
  2. The employer in question was a covered entity required to comply with the law
  3. She/he was qualified for the essential functions of the job for which s/he applied or held
  4. The employer violated one or more of the prohibitions of the Act.

The Equal Employment Opportunity Commission (EEOC) or a designated state or local fair employment practices agency will investigate an allegation to determine if discrimination occurred. The EEOC is responsible for carrying out all phases of due process on behalf of the individual who has filed a charge. After an individual files a charge with the EEOC, s/he may file a private lawsuit. An individual who brings a successful charge of employment discrimination under the ADA is entitled to equitable relief, including being hired or reinstated, back pay, seniority and benefits, and attorney’s fees. Compensatory damages or damages for pain and suffering are not provided.

What defenses are available to employers who are charged with violating the ADA?

An employer has the burden of proving it has a valid defense to the employee’s claim of discrimination. The EEOC’s regulations list several defenses to a charge of discrimination under the ADA. One defense is that the applicant or employee would pose a “direct threat” to the health or safety of the individual or others. To satisfy this defense, the employer must show that the person with a  disability will present a significant risk of substantial harm to the health or safety of the individual or others in the workplace and that this threat cannot be eliminated or reduced by reasonable accommodation.If an individual’s disability would pose a direct threat the employer may exclude the individual from a particular job for which s/he is otherwise qualified. The direct threat standard is a very high standard for an employer to prove. The employer must show that the particular way in which a person’s epilepsy affects him or her, (e.g. seizure frequency, lack of aura) demonstrated that the individual would pose a direct threat. The employer must identify the individual’s specific seizure behavior that poses a direct threat and must evaluate it in terms of:

  • The duration of the risk
  • The nature and severity of the potential harm
  • The likelihood that the potential harm will occur
  • The imminence of the potential harm

If the nature and cost of a reasonable accommodation would present significant difficulty or expense for the employer, the employer will not be required to provide that accommodation. An employer must still provide whatever accommodations would not pose an undue hardship and must offer the individual with a disability the opportunity to provide the accommodation him or herself. The employer must present a basis of fact to exercise either defense in a disputed case.

Additional Resources for Employment and Epilepsy