ADA – Know Your Rights – By Michael Wesel

Mike Wesel, Attorney & CPA

Mike Wesel, Attorney & CPA

Editor’s Note:  Unemployment rates for persons with epilepsy reach nearly 50%.  The Epilepsy Association is working to reduce this number.  On March 26, 2014, the Association is hosting a seminar for persons with Epilepsy looking for employment.  In addition to Mike’s presentation about your rights, human resource specialists will make presentations and provide hands-on, in-person help.  This includes a review of your resume and job interview role-playing.  Please share this information with everyone you know who has epilepsy.  To register log onto http://weblink.donorperfect.com/SEMINAR

This is my fifth blog for the Insights into Epilepsy  website. I have intractable Epilepsy and over the last twenty years I have had break through seizures, with varied frequency and intensity.  The Epilepsy Association is holding a seminar entitled Ease into Employment: A Program to Kick-Start Your Job Search.  I was asked to present a segment entitled ADA – Know Your Rights as well as write this article with the same theme. This is a complex area of law and this article is meant to be informative and should not be construed as legal advice.

The Americans with Disabilities Act of 1990 (ADA) prohibited disability based discrimination and protects disabled persons from discrimination in employment.  The definition of disability under the ADA was gradually narrowed by case law.  In 2008 Congress passed the Americans with Disabilities Act Amendments Act which broadened the definition of a disability.  The Amendments Act and its Regulations (promulgated by the EEOC) indicate that the emphasis should be on whether discrimination has occurred not on whether the individual has a disability.

Before the ADAAA and its Regulations, Epilepsy, because of its episodic nature did not always meet the definition of a disability. The Amendments Act and its Regulations list Epilepsy as a condition that would always meet the definition of a disability.  Although the ADAAA and its Regulations do not create a list of “per se” disabilities, they created a list of conditions that “virtually always” will meet the definition of disability and Epilepsy is on that list.  Satisfying the definition of disability is just the first step in gaining protection under the ADA.

The ADA prohibits a “covered entity” from discriminating against a “qualified individual with a disability.”  A covered entity is defined in Ohio as a company with four or more employees, with fifteen or more employees and engaged in interstate commerce or a Labor Union.  A qualified individual with a disability is defined by the state as an individual “who with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.”  For example, if I don’t have a driver’s license, due to my epilepsy, I could not apply for a job that required me to drive and be protected under the ADA.

The employer has a duty under the act to make reasonable accommodations for its disabled employees.  This means that the employer must try to make the existing facilities readily accessible and usable to individuals with disabilities.  This can be done in a variety of ways.  However, an employer is not required to provide an accommodation if it would pose an undue hardship which is defined under the act as an “action requiring significant difficulty or expense” when considering the facts and circumstances.

The ADA prohibits employers from making inquiries about disabilities or requiring medical exams before an offer is made however, they can ask applicants about their ability to perform the essential functions of the job.  Once an offer of employment is made, the employer can require a medical examination, but only if all employees in that particular job category are required to do so, and the results are kept in separate files and treated as confidential.  The employer may not withdraw an offer from a disabled person based on the results of a medical exam unless the results bring into question the person’s ability to perform the essential functions of the job and a reasonable accommodation cannot be made.

The ADA does not protect an otherwise qualified individual if they are currently engaged in the illegal use of drugs.  The employer may also prohibit the use of alcohol.  The ADA takes no stance on drug testing.  It is neither prohibited nor encouraged by the act.

Once you have the job the ADA prohibits disability-based harassment.  Harassment can occur either by a supervisor or by coworkers.  Harassment is prohibited whether from the employee’s disability per se or from his request for accommodation.  No one deserves to be discriminated against no matter who they are.

Before I close, I would like to thank Sheldon Starke, a friend and colleague of mine, who practices in this area of the law and helped me get a good understanding of the ADA.  If you find this article intriguing and would like to hear a more detailed discussion of this topic and others, please join us at the Epilepsy Association’s Seminar, Ease into Employment on Wednesday, March 26th, 2014 at the Epilepsy Association Office.  March 26 is Purple Day® or the Global Epilepsy Awareness Day. Please don’t forget to wear purple, I know I will be!

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