Epilepsy in the workplace

Q: When is epilepsy a disability under the ADA?

A: 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.

Example: A court concluded that an individual who had brain surgery to control seizures, but still continued to experience two or three seizures per month, was an individual with a disability because she was substantially limited in several major life activities, such as walking, seeing, hearing, speaking, and working, while having a seizure and often was limited in caring for herself (sometimes for more than a day) following particularly severe seizures.

Example: Some individuals take drugs that control their seizures but make them drowsy, unable to concentrate, or unable to sleep. An individual who is substantially limited in major life activities such as sleeping, thinking, concentrating, or caring for himself as a result of these side effects would have a disability under the ADA.

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

Example: A job applicant has had epilepsy for five years. For the past three years she has been seizure-free, but prior to that she experienced severe and unpredictable seizures. As a result, she had to move back home with her parents because she could not live alone, she was unable to drive, and rarely socialized with friends because she feared having a seizure in public. Even if the individual's epilepsy is not now substantially limiting, it substantially limited major life activities such as caring for herself and interacting with others in the past. This individual has a record of a disability.

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.

Example: An employer who refuses to hire someone with epilepsy because it assumes the individual is incapable of working without hurting himself or others regards the individual as having a disability.

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

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

A: 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.

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

A: 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.

Example: An individual applies for a data clerk position. She tells the interviewer that she does not have a driver's license due to epilepsy and will need a flexible schedule because public transportation is not always reliable.(1) She also mentions that she has not had a seizure in more than six months. The interviewer may ask the applicant additional questions about her requested accommodation, such as how early she can start to work and how many hours she can work each day, but cannot ask for details about her epilepsy, such as how long she has had epilepsy or whether she has had to miss work in the past because of her condition.

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

A: 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. 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.

Example: An experienced chef gets an offer from a hotel resort. During the post-offer medical examination, he discloses that he has had epilepsy for ten years. When the doctor expresses concern about the applicant's ability to work around stoves and use sharp utensils, the applicant explains that his seizures are controlled by medication and offers to bring information from his neurologist to answer the doctor's concerns. He also points out that he has worked as a chef for seven years without incident. Because there is no evidence that the applicant will pose a significant risk of substantial harm while performing the duties of a chef, the employer may not withdraw the job offer.

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

A: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.

Example: Several times during the past three months, a supervisor has observed a newly hired secretary staring blankly, making chewing movements with her mouth, and engaging in random activity. On these occasions, the secretary has appeared to be unaware of people around her and has not responded when the supervisor has asked if she was okay. The secretary has no memory of these incidents. She also has seemed confused when the supervisor asked her to make corrections on documents she (the secretary) recently typed. The supervisor may ask the secretary whether a medical condition, such as epilepsy, is affecting her ability to perform the essential functions of her job.

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.

Example: Lately, a normally reliable receptionist with epilepsy has been missing work on Mondays and leaving work early on Fridays. The supervisor noticed these changes soon after the receptionist's fiancA: 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.

Example: A court concluded that an individual who had brain surgery to control seizures, but still continued to experience two or three seizures per month, was an individual with a disability because she was substantially limited in several major life activities, such as walking, seeing, hearing, speaking, and working, while having a seizure and often was limited in caring for herself (sometimes for more than a day) following particularly severe seizures.

Example: Some individuals take drugs that control their seizures but make them drowsy, unable to concentrate, or unable to sleep. An individual who is substantially limited in major life activities such as sleeping, thinking, concentrating, or caring for himself as a result of these side effects would have a disability under the ADA.

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

Example: A job applicant has had epilepsy for five years. For the past three years she has been seizure-free, but prior to that she experienced severe and unpredictable seizures. As a result, she had to move back home with her parents because she could not live alone, she was unable to drive, and rarely socialized with friends because she feared having a seizure in public. Even if the individual's epilepsy is not now substantially limiting, it substantially limited major life activities such as caring for herself and interacting with others in the past. This individual has a record of a disability.

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.

Example: An employer who refuses to hire someone with epilepsy because it assumes the individual is incapable of working without hurting himself or others regards the individual as having a disability.

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

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

A: 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.

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

A: 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.

Example: An individual applies for a data clerk position. She tells the interviewer that she does not have a driver's license due to epilepsy and will need a flexible schedule because public transportation is not always reliable.(1) She also mentions that she has not had a seizure in more than six months. The interviewer may ask the applicant additional questions about her requested accommodation, such as how early she can start to work and how many hours she can work each day, but cannot ask for details about her epilepsy, such as how long she has had epilepsy or whether she has had to miss work in the past because of her condition.

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

A: 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. 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.

Example: An experienced chef gets an offer from a hotel resort. During the post-offer medical examination, he discloses that he has had epilepsy for ten years. When the doctor expresses concern about the applicant's ability to work around stoves and use sharp utensils, the applicant explains that his seizures are controlled by medication and offers to bring information from his neurologist to answer the doctor's concerns. He also points out that he has worked as a chef for seven years without incident. Because there is no evidence that the applicant will pose a significant risk of substantial harm while performing the duties of a chef, the employer may not withdraw the job offer.

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

A: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.

Example: Several times during the past three months, a supervisor has observed a newly hired secretary staring blankly, making chewing movements with her mouth, and engaging in random activity. On these occasions, the secretary has appeared to be unaware of people around her and has not responded when the supervisor has asked if she was okay. The secretary has no memory of these incidents. She also has seemed confused when the supervisor asked her to make corrections on documents she (the secretary) recently typed. The supervisor may ask the secretary whether a medical condition, such as epilepsy, is affecting her ability to perform the essential functions of her job.

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.

Example: Lately, a normally reliable receptionist with epilepsy has been missing work on Mondays and leaving work early on Fridays. The supervisor noticed these changes soon after the receptionist's fianc