As a person with epilepsy, it is important to know your rights. Do you have to tell your employer about your health disability? What are your rights under the American with Disabilities Act? What is a reasonable accommodation?
On August 5, senior staff attorney with the Disability Law & Advocacy Center of Tennessee, Cindy Gardner, spoke at our Chattanooga support group about workplace discrimination. Here are a few things we all learned.
What is the Americans with Disabilities Act (ADA)?
The Act says that no employer (who has 15 or more employees) shall discriminate against an individual with a disability because of the disability in regard to job application, procedures, the hiring, advancement, or discharge of employees.
Does a person with epilepsy qualify for having a disability?
Yes, they do especially since the ADA had an amendment in 2008 that states that the disability is still considered a disability even if it "may be episodic or in remission if it would substantially limit a major life activity when active." We all know that breakthrough seizures occur, and while the person with epilepsy may be 100% when his/her seizures are controlled, because breakthrough seizures are "episodic" and impair function during the times when seizures are occurring, a seizure disorder does qualify as a disability under the ADA amendment.
Do you have to disclose your disability to your employer?
No, especially not during the hiring stage unless the employer is showing preference for hiring a person with a disability or if your disability is obvious (such as in a wheelchair).
What can an employer ask on an application?
Employers can never ask you to disclose a disability prior to a conditional offer of employment. Questions that they ask that would likely elicit a disability related answer are illegal and should not be asked. Employers can only ask you to demonstrate how you would perform the essential functions of the job "with or without reasonable accommodation." Employers can require a medical exam after conditional offer of employment, but only if required of all employees. They can ask you to take a drug test, but they should only be screening for illegal drugs. If you are worried that your epilepsy medications will show up in your drug screen, you can have your prescribing doctor fax the drug testing center a letter stating that he has prescribed these medications for a medical condition and to please not inform the employer about them. Drug testing facilities are required, by law, to only report presence of illegal drugs in your system when your doctor sends them a letter.
What if I need a reasonable accommodation? How do I ask for it?
When making a reasonable accommodation request, it is best to disclose necessary information in connection with the request including: the medical condition, limitations by the condition, and a suggested accommodation how the accommodation would be effective to remove the barrier. So, for instance say that your employer sometimes would like you to drive to the bank to make a deposit. A reasonable accommodation could be that he asks another employee to do that, as long as making bank deposits wasn't an "essential function" of your job. It is important when you are hired to ask for a job description so that you see what the essential functions of the job are and that you can meet them. If the job is truck driving, but you don't have a license, it is not discrimination that they do not hire you since you could not perform the essential functions of the job. Other reasonable accommodations can be job restructuring, leaves of absences, modified or part-time schedules, modified work policies, or reassignment to a vacant position.
What if I am hired and then have a seizure on the job and am shortly thereafter let go? Is that discrimination?
The best answer is that it could be. If you feel that you have been discriminated against because of your condition, you should call the Disability Law & Advocacy Center at 1 (800) 342-1660. They will assist you in filing a charge with the Equal Employment Opportunity Commission and assist with requesting reasonable accommodations and/or represent individuals in civil appeals.