YOUR RIGHTS UNDER THE LAW Cathleen Bolek Attorney at Law Bolek Besser Glesius LLC

EPILEPSY IN THE WORKPLACE

YOUR RIGHTS UNDER THE LAW

Cathleen Bolek Attorney at Law

Bolek Besser Glesius LLC www.bbgohio.com

Employment laws protect “qualified individuals with disabilities”

◦ Persons with a “disability” who can work

◦ Who may or may not need an accommodation to do the job



“Disabled” ≠ Unable to work

Persons with epilepsy may have no disability at all most of the time;

During a seizure, a person with epilepsy is completely disabled.



“Disabled” ≠ Unable to work

Americans with Disabilities Act (ADA) Applies to

employers with 15 or more employees

Ohio Revised Code Chapter 4112 Applies to

employers with 4 or more employees.



Both federal and Ohio law protect “disabled” workers

Having a physical or mental impairment that substantially limits one or more major life activities



Under the ADA, “Disabled” Means:

Having a record of such an impairment




Being regarded as having such an impairment.




Major Life ActivitiesBefore Amendments to ADA

Caring for oneself

Performing manual tasks

Working

Seeing, hearing, speaking, thinking, concentrating, learning, reading, communicating, eating, sleeping, walking, standing, sitting, reaching, breathing, interacting with others, and working

2008 Amendments included

Operation of major bodily functions, including immune system, special sense organs and skin; normal cell growth; digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.



After 2008 Amendment, epilepsy should be considered a disability because it substantially limits neurological functions and other major life activities during a seizure.

Even if you no longer have seizures, ADA protects those with a history of a disability.



Major Life Activities

Qualified Individual with a Disability

◦ Individual with a disability (or with a history of being disabled, or regarded as disabled)

◦ Who is able to perform the essential functions of the job, whether or not a reasonable accommodation is needed.



Who is Protected?

Discrimination - treating workers differently because of a disability, with regard to any term, condition, benefit or privilege of employment.

◦ Hiring

◦ Training

◦ Compensation (cannot deduct cost of accommodation, either)

◦ Promoting

◦ Disciplining

◦ FiringCathleen Bolek

Attorney at Law Bolek Besser Glesius LLC

www.bbgohio.com

What is prohibited?

Using headhunter, union, or other group to screen out disabled workers



What is prohibited?

Having policies that effectively screen out disabled workers, unless:

◦ The policy is job-related;

◦ The policy is necessary to the business, and

◦ No reasonable accommodation can be made.



What is prohibited?

Associational discrimination. Treating employee differently because employee has a disabled parent, spouse, child, etc.

Note: no duty to accommodate.



What is prohibited?

Failing to make reasonable accommodations, unless it would create “undue hardship.”



What is prohibited?

Employer may not ask any medical questions.

◦ Whether you have epilepsy or have ever had seizures

◦ Whether you uses any prescription drugs

◦ Whether you have ever filed for workers' compensation or been injured on a job



Applying for the Job

Employer may ask “Are you able to perform the essential functions of the job?”

◦ Whether you have a driver's license (if necessary to job);

◦ Whether you can operate heavy machinery or equipment (if necessary to job)



Applying for the Job

Medical exams are permitted, and offer may be conditioned upon results, but only if:

Required of all entering employees in that job

Results kept confidential

Supervisors are told only of restrictions and necessary accommodations

First aid and safety personnel are notified only if the disability might require emergency treatment



After An Offer of Employment

Employer may not ask any medical questions or require medical exam unless job related and a business necessity

Employer may not ask about any disabilities unless accommodation is requested

Employer cannot refer employees to mental health counseling or administer personality tests that are likely to expose a mental illness

Employer may conduct voluntary exams as party of employee health program



Once Hired

Job Restructuring

◦ Reassigning marginal job functions

◦ Changing when and/or how an essential job function is performed



Reasonable Accommodations

Modification of Worksite

◦ Changing lighting

◦ Placing a rubber mat or carpet in worksite to cushion a fall




Modified Work Schedule

◦ Allowing more frequent breaks to take medication

◦ Allowing leave for treatment or recuperation




Reassignment to a vacant position

◦ One that does not require driving

◦ One that does not require use of heavy machinery




Anything that requires “significant difficulty or expense”

Different for each employer

Undue hardship to small business may not be undue hardship to large company

Consider:

◦ Cost of Accommodation

◦ Resources of Employer

◦ Number of employees at worksite

◦ Impact on operation of facility

◦ Facility’s finances, administration, geographic location.



What is an Undue Hardship?

Employer has no obligation to offer an accommodation if the employee does not ask for it.



Requesting Accommodation

Employee does not need to use special words to ask for an accommodation

Employee need only communicate that he has a medical condition, and needs something (time off, different schedule, some equipment, whatever) from the employer.




Once employer learns that employee has an impairment or medical condition and has requested some change to do the job, employer must provide the requested accommodation or interact with the employee to find a reasonable accommodation.




Employer is then permitted to ask questions about the disability to determine how to accommodate the employee

Employer may request medical information and documentation, limited to the disability (not any other medical conditions), and only as necessary to accommodate the employee




Employer is not required to give the accommodation the employee asked for

Employer must offer a reasonable accommodation

Employee who does not require an accommodation to perform the essential functions of the job is not required to accept an accommodation




Employers may not retaliate against:

◦ An employee who asks for an accommodation or complains of disability discrimination

◦ An employee who requests accommodation or complains of discrimination on behalf of another employee

◦ An employee who files a disability discrimination charge or lawsuit, testifies against the company in a discrimination lawsuit, or helps someone else asserts their rights under the ADA



Retaliation

Employers may not:

◦ Coerce employees to give up their rights

◦ Intimidate or threaten employees who assert their rights

◦ Interfere with any employee’s exercise of their rights

◦ Interfere with any employee’s act of aiding or encouraging an other individual to exercise their rights.



Retaliation

Federal claim

300 days to file a charge with the Equal Employment Opportunity Commission (EEOC).

90 days after the EEOC notifies you of your right to sue, complaint must be filed in Federal Court. Complaint cannot be filed until after the Charge is filed and the right to sue is obtained.

Ohio law

6 years to file a civil lawsuit in court.Cathleen Bolek

Attorney at Law Bolek Besser Glesius LLC

www.bbgohio.com

Remedies

Employer must have 50 or more employees

You must have been with that employer 1 year or more

You must have worked at least 1,250 hours during the previous 12-month period

Does not apply to Federal employees



Family and Medical Leave Act

Protects 12 workweeks of unpaid leave during any 12 month period

◦ To care for yourself, your spouse, your parent, or your minor child (or your adult child who is incapable of self care)

◦ Because of a serious health condition




Leave may be taken intermittently when medically necessary

◦ Time off to go to the doctor

◦ Time off after a seizure

◦ Time off for treatment




It is illegal to interfere with an employee’s exercise of rights under the FMLA, to deny protected leave, or to retaliate against an employee who exercises his rights or complains of a violation.

A claim under the FMLA may be filed in court within 2 years of the violation.



Retaliation

A claim under the FMLA may be filed in court within 2 years of the violation.



Remedies



Any Questions?

Documents

YOUR RIGHTS UNDER THE LAW Cathleen Bolek Attorney at Law Bolek Besser Glesius LLC