The Americans with Disabilities Act (“ADA”), as amended by the Americans with Disabilities Act Amendment Act (“ADAAA”), may provide protections for people with epilepsy. One of the protections mandated by the ADA is that covered employers must provide reasonable accommodations to qualified individuals with disabilities, so long as that the accommodations are not an undue hardship on the employer. Importantly, many of these terms—”covered employer,” “reasonable accommodations,” “qualified individuals,” “disability,” and “undue hardship”—are terms that have special meanings within the ADA that differ from their common uses. To complicate matters further, every case requires an individualized assessment, such that the facts of two factually similar cases might yield two different legal results. For these reasons, the following hypotheticals are limited to the particular facts recited, and each person’s circumstances deserve an individualized analysis.
The amended ADA provides a much easier road for a person with epilepsy to prove that he is disabled. The issue more likely to arise is whether a person’s epilepsy renders him unqualified for his position. An individual is “qualified” for his position if, with or without accommodation, he can perform the essential functions of his job. Though an employer’s designation of what functions are essential does play a part in whether that is the case, several other factors must be considered: for example, the time spent performing the function in question and whether the reason the position exists is to perform that function.
Several hypotheticals illustrate the nuances of the “qualified” designation:
- Example 1: Janelle, a nurse with epilepsy, finds that her seizures are much more manageable if she works a consistent schedule. She provides her employer with a note from her doctor requesting that her schedule be consistent. Her employer may be required to provide her with a consistent schedule. If, however, Janelle works a position that has an inconsistent schedule by its very nature, such as a PRN (“as needed”) nurse, then her disability might render her unqualified for her position and her employer might not have to accommodate her. On the other hand, if the doctor’s note did not request a consistent schedule but instead requested that PRN Janelle work only within the hours of 8:00 a.m. to 5:00 p.m., this request might not impact Janelle’s qualification and her employer might be able to comply with this request. Whether this accommodation would be an undue hardship on Janelle’s employer would depend on the employer’s particular circumstances.
- Example 2: Nathan works for an Italian restaurant as a delivery person. He has been diagnosed with epilepsy and his doctor has prohibited him from driving for six months. If Nathan’s position requires him to drive, then he would very likely be deemed unqualified for his position. However, if an accommodation—such as allowing Nathan to deliver pizza via bicycle—could result in Nathan being qualified and would not be an undue burden on the restaurant, then the restaurant might have to accommodate Nathan in that way. The restaurant may even have to buy Nathan a bicycle. Notably, though, the restaurant is not required to terminate a delivery person who uses a bicycle so that Nathan can be placed in that position. To further complicate this hypothetical, if the restaurant had two types of delivery positions, one requiring driving a car (for deliveries of extended distances) and one requiring riding a bicycle (for short-distance deliveries), and Nathan was hired for the long-distance delivery position, then the restaurant could not render Nathan fully qualified with the bicycle accommodation—people would end up with cold pizza. Under those circumstances, the restaurant might terminate Nathan and successfully argue that no accommodation was required.
- Example 3: Georgia works as a security guard for a bank. She has been diagnosed with epilepsy and suffers from complex partial seizures approximately once a month. If she is the only guard working during her shift, her epilepsy might render her unqualified for her position, because her seizures render her unable to provide security services. However, if she works as part of a team, such that her seizures would not cause an interruption in security, her employer might be required to accommodate her by giving her breaks whenever her disorder requires.
- Example 4: Sandra works as a radio DJ and has been diagnosed with epilepsy. She experiences an “aura” approximately five minutes before she experiences a seizure, experiences a seizure, and then is fully coherent approximately 15 minutes later. Her employer may be required to provide her with breaks from broadcasting so that she can experience and recover from her seizures, if this wouldn’t cause an undue burden. For example, if Sandra’s co-host took over during her seizure and break, this would be a reasonable accommodation. On the other hand, if Sandra works the 12 a.m. to 4 a.m., Sunday through Thursday, shift at the radio station and is the only person in the entire building, this accommodation might be more difficult to provide. However, in that circumstance, Sandra might be able to prepare pre-recorded content, such that she could begin playing that content when she began to experience a seizure and it would play through the duration of her seizure and recovery.
- Example 5: Brandon works as a recruiter in Manhattan and was recently diagnosed with epilepsy. On his job description—which is used nationwide—the ability to drive is listed as an essential job function. However, Brandon’s territory is restricted to the island of Manhattan, where he is able to travel by subway and bus. Brandon’s particular circumstances indicate that, for his particular position, driving is not an essential job function, and so his employer should not take any adverse employment action against him because of his disability.
As these examples illustrate, every case requires an individualized assessment. This analysis is even more complicated when an employer believes an employee with epilepsy to be a “direct threat” to himself or to others. For more information on the rights of people with epilepsy under the ADA, contact and attorney and review the website of the Epilepsy Foundation of America at epilepsyfoundation.org.