The Americans with Disabilities Act (ADA) was enacted to prohibit disability-based discrimination. Title I of the Act prohibits employment discrimination against qualified individuals with disabilities and applies to private employers with 15 or more employees. A "qualified individual" with a disability is one who is able to perform the essential functions of the job, with or without reasonable accommodation. The ADA equally protects all disabled individuals regardless of which state they live in.
An employer must make reasonable accommodation for a known disability unless to do so would impose an undue burden on the employer. Whether a particular accommodation imposes an "undue burden" depends on a variety of factors including the overall size of the employer, number of employees, the number and types of facilities, the budget size and the nature and cost of the accommodation requested. In addition, an employer is not required to make an accommodation that would fundamentally alter the job requirements.
There are three separate categories of reasonable accommodations: 1) modifications to job application process which enables disabled individuals to be considered for jobs; 2) accommodations on the job; and 3) accommodations made to allow disabled individuals to enjoy equal benefits and privileges of employment.
Accommodations vary in form and should be individually tailored to suit the person's unique needs. Accommodations should be considered on a case-by-case basis with attention to the person's individual limitations or needs. There are no so-called "blanket accommodations" that would be appropriate for every individual with epilepsy or seizures. For example, an individual experiencing memory problems, due to side effects of certain medications, may request that specific instructions or directions be put in writing instead of given orally. For the person in the process of changing medications, the possibility of breakthrough seizures may necessitate a request for flexible hours for a period of time as an accommodation, or require a short break if a seizure occurs at work.
It is important to involve the person with epilepsy in the process of determining what accommodation might be needed. The Equal Employment Opportunity Commission (EEOC), the federal agency in charge of enforcing title I of the ADA, "envisioned an interactive process that requires participation by both parties." While the employee is required to request an accommodation, the specific accommodation requested need not be the one that is specifically granted. Rather, the accommodation need only be "effective." In other words, the accommodation must ultimately meet the objective of permitting the employee to perform the "essential functions" of the position. It need not necessarily have to be the accommodation the employee "preferred."
In addition, the individual's treating physician can play an important and sometimes critical role in the accommodation process. Requests for accommodations will trigger legitimate inquiries by employers for supporting medical data. The job description may assist an employee's or applicant's physician in providing input. In general, courts have determined that employees who fail to provide to their employers any medical information regarding their request for reasonable accommodation are considered not to be participating in the "interactive process" intended by the law. However, the scope of the employer's inquiry should be limited and job-related. It is also expected that the medical data sought should support the requested accommodation, thereby establishing that the accommodation is medically indicated.
If an individual is having difficulties in performing job duties due to a disability, it is important for the employee to consider whether an accommodation should be sought. Employers are not responsible for providing accommodations where the disability is not known to the employer. Moreover, the employee experiencing difficulties in performing job duties will want to address the problem prior to the employer taking any type of adverse or disciplinary action related to job performance.
While the concept of reasonable accommodation is meant to be interpreted broadly, employers and employees often disagree about what is considered reasonable. For additional information and assistance, the following agency can provide expertise in the area of employment and reasonable accommodation:
Job Accommodation Network (JAN),
PO Box 6080,
Morgantown, WV 26506-6080,
The EEOC has issued comprehensive guidance on the reasonable accommodation issue, which is available on the agency's website at http://www.eeoc.gov/policy/docs/accommodation.html. There is also a great deal of general information on workplace issues that is helpful to persons with epilepsy contained in the EEOC's Questions and Answers about Epilepsy in the Workplace, available at http://www.eeoc.gov/facts/epilepsy.html.
There are currently many ADA cases in courts throughout the country which may affect your rights and responsibilities under the ADA. The Rehabilitation Act of 1973, as well as state employment laws, also has provisions regarding the reasonable accommodation requirements of employers. In addition, if you are subject to a collective bargaining agreement or a workers compensation claim, there may be specific issues regarding your seizures which are not covered in this fact sheet. For specific legal advice, consult a local attorney.
For information on obtaining a referral to an attorney in your area that may be able to provide specific advice or representation, please visit the website for the Jeanne A. Carpenter Epilepsy Legal Defense Fund, or call our Information and Referral Service toll free at (800) EFA-1000 ((800) 332-1000). For general legal information about this and other employment discrimination issues, pleasecall our Information and Referral Service. Alternatively, you may contact the EEOC at (800) 669-4000 (voice) or (800) 669-6820 (TDD), or visit the agency's website.