By Dana Stripling, JD, Garlo Ward, P.C.
www.garloward.com
Posted August 25, 2004
Those who are grappling with the new FLSA rules may be relieved to hear that the Department of Labor has decided to delay publishing proposed revisions to the Family and Medical Leave Act rules until March 2005.
The EEOC had also planned on introducing changes this year to its EEO-1 form, the Employer Information Report. Now it looks like you’ll have to wait until some
time after the presidential election. Opposition came from a coalition of civil rights groups, which argued that proposed changes to the form could result in a misrepresentation of the numbers of African Americans and Hispanics in EEO-1-reporting employers’ workplaces.
The Centers for Medicare and Medicaid Services (CMS) tackled a variety of HIPAA security compliance issues in 12 new frequently asked questions (FAQs) posted Aug. 12th on the agency’s Web site.
In the FAQs, CMS continued to focus on the security rule’s “flexibility and scalability” and the requirement that covered entities document the security measures found to be “reasonable and appropriate.”
CMS specified that the rule does not prohibit e-mailing electronic protected health information (e-PHI) or impose minimum operating system requirements for personal computers. CMS added that the rule applies to e-PHI at telecommuting employees’ home offices and other off-site locations. Other FAQs defined terms such as “encryption,” “physical safeguards” and “system vulnerability,” and addressed the role of external certification organizations and the National Institute of Standards and Technology. The FAQs can be accessed from CMS’ Web site at www.cms.hhs.gov/hipaa/hipaa2.
EEOC Addresses Rights of Epileptic Employees
The EEOC released this month a fact sheet that addresses the workplace rights of individuals with epilepsy under the Americans with Disabilities Act (ADA). According to the EEOC, approximately 2.3 million people in the U.S. have some form of epilepsy.
The Americans with Disabilities Act (ADA) is a federal law that prohibits discrimination against individuals with disabilities. Title I of the ADA covers employment by private employers with 15 or more employees as well as state and local government employers of the same size. The U.S. Equal Employment Opportunity Commission (EEOC) expressly addressed epileptic applicants and employees, including:
� when epilepsy is considered a disability under the ADA;
� when an employer may ask an applicant or employee questions about epilepsy and how it should treat voluntary disclosures;
� what types of reasonable accommodations employees with epilepsy may need;
� how an employer should handle safety concerns about applicants and employees with epilepsy; and
� how employers can ensure that no employee is harassed because of epilepsy or any other disability.
Following are some of the issues addressed by the EEOC.
1. Is epilepsy a disability protected by the ADA?
Not always. Under the ADA, the determination of whether an individual has a disability is made on a case-by-case basis. 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.
2. The Revealing and Unrevealing Applicant. The ADA limits the medical information that an employer can seek from a job applicant. You may not ask questions about an applicant’s medical condition or require an applicant to take a medical examination before you make a conditional job offer. This means that you cannot ask an applicant questions such as:
� whether she has epilepsy or seizures;
� whether she uses any prescription drugs; or
� whether she ever has filed for workers’ compensation or was injured on a job.
After making a job offer, you may ask questions about an applicant’s health and may require a medical examination as long as you treat all applicants the same.
— Does the ADA require an applicant to disclose that she has epilepsy or some other disability before accepting a job offer? 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.
— Can I ask any follow-up questions if an applicant voluntarily reveals that she has epilepsy?
If an applicant voluntarily discloses that she has epilepsy, you only may ask two questions: whether she needs a reasonable accommodation, and if so, what type. Of course, you 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.
— What can I do when I learn that an applicant has epilepsy after he has been offered a job?
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. You, therefore, should evaluate the applicant’s present ability to perform the job effectively and safely. After an offer has been made, you 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.
You 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.
3. Epilepsy in the Workplace: What Can I Asks the Employee?
— When may I ask an employee if epilepsy, or some other medical condition, might be affecting her ability to do her job?
You may ask questions or require an employee to have a medical examination only when you have 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. Thus, it is critical that you gather any documentation or observations that raise concerns about the employee’s mental or physical condition as it may be affecting the job.
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 you do not have a reason to believe that a medical condition is causing an employee’s poor job performance, you 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� moved to another state. The supervisor can ask the receptionist about her attendance problems but may not ask her about her epilepsy.
You also may ask an employee about epilepsy when you have a reason to believe that the employee may pose a “direct threat” (i.e., a significant risk of substantial harm) to himself or others. You should make sure that your safety concerns are based on objective evidence and not general assumptions.
Example: A line cook with epilepsy had three seizures in his first six weeks on the job. Although the cook did not injure himself or anyone else during his seizures, the employer may send him for a medical examination or ask him to submit documentation from his doctor indicating that he can safely perform his job, which requires him to work around flat top grills, hot ovens, and fryers with boiling oil.
— May I require an employee on leave because of epilepsy to have a medical exam or provide documentation before allowing her to return to work?
Yes, if you have a reasonable belief that the employee may be unable to perform her job or may pose a direct threat to herself or others. However, you may obtain only the information needed to make an assessment of the employee’s present ability to perform her job and to do so safely.
Example: A pool cleaner called his supervisor on Monday morning and told him he was taking sick leave because he had a seizure over the weekend — his second in six months. Given the safety risks associated with the pool cleaner’s job, the employer may ask him to have a medical exam or provide medical documentation indicating that he can safely perform his job without posing a direct threat before allowing him to return to work.
Example: A cashier, who has occasional nocturnal seizures, took two weeks off to adjust to a new medication. She works the day shift and never has been late for work, never has had difficulty performing her duties, and never has had a seizure on the job. The employer may not require the cashier to have a medical examination or ask her for medical documentation before allowing her to return to work because there is no indication that her epilepsy will prevent her from doing her job.
Example: A budget analyst with epilepsy has a seizure at work. She explains to her manager that following a seizure she is typically very tired and needs to rest for several hours. She says that she will be fine the next morning and will be back at work, but asks if she could call someone to drive her home and take off for the rest of the day. Because there is no reason to believe that the analyst will be unable to do her job or will pose a safety risk, the employer may not require her to submit a doctor’s note clearing her to return to work the next day.
— Are there any other instances when I may ask an employee about epilepsy?
You may ask an employee about epilepsy when the employee has requested a reasonable accommodation because of his epilepsy or as part of a voluntary wellness program.2 In addition, you may ask an employee with epilepsy to justify the use of sick leave by providing a doctor’s note or other explanation, as long as you require all employees to do so.
4. What Should I Do with Any Medical Information I Receive?
With limited exceptions, you must keep confidential any medical information you learn about an applicant or employee. You, however, under certain circumstances may disclose to particular individuals that an employee has epilepsy:
� to supervisors and managers, if necessary to provide a reasonable accommodation or meet an employee’s work restrictions;
� to first aid and safety personnel if an employee would need emergency treatment or require some other assistance if she had a seizure at work;3
� to individuals investigating compliance with the ADA and similar state and local laws; and,
� as needed for workers’ compensation or insurance purposes (for example, to process a claim).
— May I explain to other employees that their co-worker is allowed to do something that generally is not permitted (such as have more breaks) because he has epilepsy?
No. You may not disclose that an employee has epilepsy or is receiving a reasonable accommodation. However, you certainly may respond to a question about why a co-worker is receiving what is perceived as “different” or “special” treatment by emphasizing that you try to assist any employee who experiences difficulties in the workplace. You also may find it helpful to point out that many of the workplace issues encountered by employees are personal and it is the employer’s policy to respect employee privacy.
— If an employee has a seizure at work, may I explain to other employees or managers that the employee has epilepsy?
No. Although the employee’s co-workers and others in the workplace who witness the seizure naturally may be concerned, you may not reveal that the employee has epilepsy. Rather, you should assure everyone present that the situation is under control. You also should follow the employee’s plan of action if one has been created. Otherwise, you should again reiterate each employee’s right to privacy.
Example: During a staff meeting, an employee’s arm and leg suddenly start jerking. Although she appears awake, she does not say anything. When another employee asks whether he should call an ambulance, a manager calmly explains that no first aid is necessary and that the employee will be okay in a few minutes. He adjourns the meeting and stays with the employee until she recovers from her seizure.
Of course, you may certainly allow an employee voluntarily to tell her co-workers that she has epilepsy and provide them with helpful information, such as how to recognize when she is having a seizure, how long her seizures generally last, what, if anything, should be done if she has a seizure, and how long it generally takes her to recover. However, even if an employee voluntarily discloses that she has epilepsy, you are limited in sharing this information with others.
5. So What Is My Obligation To Accommodate an Employee with Epilepsy?
The ADA requires employers to provide adjustments or modifications to enable people with disabilities to enjoy equal employment opportunities unless doing so would be an undue hardship (i.e., a significant difficulty or expense). Accommodations vary depending on the needs of an individual with a disability. According to the EEOC, not all employees with epilepsy will need an accommodation or require the same accommodation, and most of the accommodations a person with epilepsy might need will involve little or no cost.
— What are typical reasonable accommodations for employees with epilepsy?
The EEOC determines that some employees may need one or more of the following accommodations:
� breaks to take medication
� leave to seek treatment or adjust to medication4
� a private area to rest after having a seizure
� a rubber mat or carpet to cushion a fall
� adjustments to work schedules
� a consistent start time or a schedule change (e.g., from the night shift to the day shift)
� a checklist to assist in remembering tasks
Example: A library schedules employees to work eight-hour shifts starting as early as 8:00 a.m. and as late as 1:00 p.m. A librarian who has epilepsy and experiences nocturnal seizures, which leave her tired in the early morning, requests that her shifts start in the late morning or early afternoon. The employer determines that because there is a sufficient number of staff available between 8:00 a.m. and 10:00 a.m. to respond to requests from the public for assistance, the accommodation can be granted without undue hardship.
Example: A home nurse rotated from working the 7:00 a.m. to 3:00 p.m. shift to the midnight to 8:00 a.m. shift. His doctor wrote a note to the employment agency indicating that interferences in the nurse’s sleep were making it difficult for him to get enough rest and, as a result, he was beginning to have more frequent seizures. If eliminating the nurse’s midnight rotation would not cause an undue hardship, this would be a reasonable accommodation.
Example: A box packer would have absence seizures while packing boxes and forget what he was doing. The supervisor created a checklist for each step of the job. Now, when the box packer has a seizure, he simply looks at the checklist to see what steps he has completed.
Other employees with epilepsy may need:
� to bring a service animal to work5
� someone to drive to meetings and other work-related events
� to work at home
Example: When a medical transcriber started having frequent, unpredictable seizures at work, she asked her supervisor if she could work at home until her seizures were controlled. Because the transcriber can do the essential functions of her job at home without day-to-day supervision, the employer granted her request.
Although these are some examples of the types of accommodations employees with epilepsy commonly need, other employees may need different changes or adjustments. You should ask the employee requesting an accommodation because of his epilepsy what is needed to do the job. There also are extensive public and private resources to help you identify reasonable accommodations. For example, the web site for the Job Accommodation Network (JAN) (www.jan.wvu.edu/media/epilepsy.html) provides information about many types of accommodations for employees with epilepsy.
— When can I reassign an employee with epilepsy to another position?
Reassignment may be necessary where an employee with epilepsy no longer can perform his job, with or without reasonable accommodation, unless you can show that it would be an undue hardship. The new position should be equal in pay and status to the employee’s original position, or as close as possible if no equivalent position is available. The new position does not have to be a promotion, although the employee should have the right to compete for promotions just like other employees.
Example: A telephone repairman submits a note from his doctor stating that he recently has been diagnosed with epilepsy and must avoid climbing and working at heights above ground level. Although the employer would not have to “bump” another employee from a position to create a vacancy, the employer should determine whether there is another position for which the repairman is qualified that will meet his restrictions
— How do I know when an employee with epilepsy is requesting a reasonable accommodation?
There are no “magic words” that a person has to use when requesting a reasonable accommodation. An employee simply has to tell you that she needs an adjustment or change at work because of her epilepsy.
Example: A teacher tells her principal that she recently has been diagnosed with epilepsy and needs three weeks off to find out whether medication will control her seizures. This is a request for reasonable accommodation.
A request for reasonable accommodation also can come from a family member, friend, health professional, or other representative on behalf of a person with epilepsy. If you do not already know that an employee has epilepsy, you can ask the employee for verification from a health care professional.
— Do I have to grant every request for a reasonable accommodation?
No. You do not have to provide an accommodation if doing so will be an undue hardship. Undue hardship means that providing the reasonable accommodation would result in significant difficulty or expense. If a requested accommodation is too difficult or expensive, you still would need to determine whether there is another easier or less costly accommodation that would meet the employee’s needs.
— Am I obligated to make sure that an employee takes antiseizure medicine as prescribed as a reasonable accommodation?
No. You have no obligation to monitor an employee to make sure that she takes prescribed medication or does not have a seizure. However, you may have to provide a flexible work schedule or allow the employee breaks to rest or to take medication to keep her epilepsy under control.
— Do I have to eliminate driving from job duties if an employee does not have a license because of epilepsy?
Not if driving is an essential function of a job. However, you should carefully consider whether driving actually is a job function or simply a way of accomplishing an essential function. If an accommodation is available that would enable an employee with epilepsy to perform a function that most employees would perform by driving, then you must provide the accommodation, absent undue hardship.
Example: A qualified sales clerk applies for promotion to assistant manager of a store. The employer promotes someone else because it claims that an essential function of the assistant manager’s job is driving store receipts to the bank. Because depositing the receipts in a safe and timely manner, not driving, is the actual function of the job, the employer should have determined whether the sales clerk could have done the job with a reasonable accommodation (e.g., having another employee drive her or paying for her to take a taxi).
Similarly, if driving is a marginal (or non-essential) function, the fact that an individual with epilepsy does not have a driver’s license cannot be used to deny the individual an employment opportunity.
Example: College orientation guides are hired to hand out information packets and give tours of the campus. Occasionally, a guide also may be asked to drive prospective students to and from the airport. Not every guide is asked to perform this function, and there are always other guides available to perform the function if a particular individual is unavailable. Because driving is not an essential function of the job, the college cannot refuse to hire a person to be a guide who does not have a driver’s license because of epilepsy but, rather, would have to assign someone else to perform that task.
6. What About Employee Safety?
When it comes to safety, you should be careful not to act on the basis of myths, fears, generalizations, or stereotypes about epilepsy. Instead, you should evaluate each individual on his knowledge, skills, experience, and how having epilepsy affects him. In other words, you should determine whether a specific applicant or employee would pose a “direct threat” or significant risk of substantial harm to himself or others that cannot be eliminated or reduced through reasonable accommodation. This assessment must be based on objective, factual evidence, including the best recent medical evidence and advances to treat and control epilepsy.
— When may I prohibit a person who has epilepsy from performing a job because of safety concerns?
You may prohibit a person who has epilepsy from performing a job when you can show that the individual may pose a direct threat. In making a “direct threat” assessment, you must evaluate the individual’s present ability to safely perform the job. You also should consider: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and, (4) the imminence of the potential harm. The harm also must be serious and likely to occur, not remote and speculative. Finally, you must determine whether any reasonable accommodation would reduce or eliminate the risk.6
Example: A tool inspector with epilepsy applies to be a welder for the same company. During the past two years, the employee has on several occasions failed to take prescribed medication and has experienced sudden and unpredictable seizures at work. Because of the likelihood that the employee would experience sudden and unpredictable seizures and the serious consequences that would result if the employee had a seizure while working as a welder, the employer may deny the employee the job.
— What should I do when another federal law prohibits hiring anyone who has epilepsy?
You have a defense to a charge of discrimination under the ADA if a federal law prohibits you from hiring a person with epilepsy. You should be certain, however, that compliance with the law actually is required, not voluntary and that the law does not contain any exceptions or waivers.
7. Other Employees’ Reaction to or Treatment of Epileptic Employees.
Employers are prohibited from harassing or allowing employees with disabilities to be harassed in the workplace. When harassment is brought to the attention of a supervisor, the supervisor must take steps to stop it.
— What should I do to prevent and correct harassment?
You must make clear in written policy and in actual practice that you will not tolerate harassment based on disability or on any other basis (i.e., race, sex, religion, national origin, or age). This can be done in a number of ways, such as through a written policy, employee handbooks, staff meetings, and periodic training. You should emphasize that harassment is prohibited and that employees should promptly report such conduct to a manager. Finally, you should immediately conduct a thorough investigation of any report of harassment and take swift and appropriate corrective action. For more information on the standards governing harassment under all of the EEO laws, see www.eeoc.gov/policy/docs/harassment.html.
This is the second in a series of EEOC fact sheets focusing on particular disabilities in the workplace. Last October, the EEOC released a fact sheet on diabetes. To view the new fact sheet on epilepsy, click on http://www.eeoc.gov/facts/epilepsy.html.
All information in this article is informational only and is not legal advice. Should you have any questions or a situation requiring advice, please contact an attorney.
Copyright 2004 by Garlo Ward, P.C., all rights reserved.
1 Every state licenses people with epilepsy to drive, though eligibility requirements vary. The most common requirement is that individuals be seizure free for a specified period of time and submit a physician’s evaluation of their eligibility to drive safely. Some states require individuals with epilepsy to submit periodic medical reports for as long as they remain licensed.
23 Although many individuals who have seizures do not require any first aid or assistance, an employee who might need assistance may want to work with his employer to create a plan of action that includes such information as: who to contact in an emergency; warning signs of a possible seizure; how and when to provide assistance; when to call an ambulance, etc. The employee and employer also should discuss who in the workplace should know this information. Some individuals also might want to ask their employers for an opportunity to educate their co-workers about epilepsy to dispel any misperceptions or unsubstantiated fears they may have about the condition.
4 An employee with epilepsy also may be entitled to leave under the Family and Medical Leave Act (FMLA), which provides up to 12 weeks of unpaid leave for a serious health condition. The U.S. Department of Labor enforces the FMLA. For more information, go to www.dol.gov/esa/whd/fmla.
5 Service animals are animals that are trained to perform tasks for individuals with disabilities such as guiding people who are blind, alerting people who are deaf, pulling wheelchairs, alerting and protecting a person who is having a seizure, or performing other special tasks.
6 If the individual is a current employee, reasonable accommodation must include consideration of reassignment to a vacant position for which the employee is qualified.
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