Epilepsy and the Law:  Education and Employment

 

Leslie J. Cohen, JDDirector Sonoran UCEDDAssistant Professor FCM

University Center for Excellence in DevelopmentalDisabilities

DD Act mandates that every state has at least 1 university center – federally funded by Administration on Intellectual & Developmental Disabilities

Engaging in interdisciplinary training, research and evaluation, model services and programs, and information dissemination/technical assistance.

What is the Sonoran UCEDD?

Education and Training: interdisciplinary training program

Model programs: health care, aging, employment, youth transition

Research and Evaluation: children with Down Syndrome, Autism, Aging and End of Life, Youth , community needs.

Information Dissemination on state and national disability developments.

Why talk about Epilepsy and the Law?

Stereotypes and Stigma Persist“They fired me after I had one seizure at work”

“Other kids didn’t want to hang out with me…the teacher told them I might act funny sometimes”

“I was arrested because the cop thought I was drunk – I was having a seizure.”

“They wanted me to take on-line courses instead of on campus…they told me it was a liability issue”

Epilepsy : Legal Rights and Responsibilities

Education

Employment

Services and Benefits

Community Life

Epilepsy and the Education System

Individuals with Disabilities Education Act (IDEA)• epilepsy is impacting

educational progress• eligible for special education

related services

Section 504• epilepsy not impacting educational

progress• but needs accommodation

IDEA Children with epilepsy eligible for IDEA if

adversely impacts ability to learn: category is “other health impairment”

IEP Cornerstone of services:• health services/medication administration• specialized recreation services• counseling• other non-instructional services.

Specialized instruction may also be necessary to compensate for accompanying learning disabilities or other cognitive impairments resulting from frequent losses of consciousness or other impairment of attention or learning ability.

Questions to Ask in Developing IEP

Legal Rights of Children with Epilepsy in School and Child Care (2nd Ed)

Does the epilepsy affect the student’s progress in reading? Math? Other academic areas?

Does the student’s cognitive ability fluctuate depending on seizures and side effects from medication?

Does the student have memory impairment from seizures?

Does the student have particular dietary needs?

Does epilepsy affect the student’s social relationships in the school setting?

How old is the student?

If the student is approaching or is of transition age, is he or she able to manage medical care independently or is that an attainable transition goal?

Where will the student live after he or she leaves school?

What will he or she do during the day?

Important Issues in Schools under IDEA

Medication Administration• should be listed in IEP (dosage, times of time,

signed medication authorization)

Transfers from neighborhood school to one with a nurse• must have individualized assessment of the

necessity of the transfer and other less restrictive ways to handle

Lowered Expectations for youth• advocating for transition planning & real futures

Section 504Federal Anti-Discrimination Law

Student is not adversely impacted academically by epilepsy

Student Needs Reasonable Accommodation

Must develop “504 Plan”

Section 504 Plans Medication Administration

Seizure Action Plan

Dietary Restrictions

Modified Schedule

Training for Staff / Education for Class

Model for a plan at: http://www.epilepsynorcal.org/docs/Sample_504.pdf

Post-Secondary Education

Colleges, trade schools, other post-high school training programs:▪ Governed by ADA not IDEA▪ If federal funding – Sec. 504 applies

Principles – non-discrimination and reasonable accommodation

Employment: Americans with Disabilities Amendments Act of

2008ADA prohibits discrimination on the

basis of disability in all aspects of employment.

Hiring Benefits Terms and Conditions Promotion Job Duties Discipline

What is Employment Discrimination under ADA?

The individual’s impairment qualifies as a disability within the meaning of the ADA;

The individual is qualified to perform the job’s essential functions with or without reasonable accommodations; and

The individual has suffered an adverse employment action owing to the employer’s act or omission against the individual.

Employment: ADA – Who is covered

Individuals with a physical, mental or sensory impairment which substantially limits one or more life activities.

Most individuals with epilepsy would be considered as “an individual with a disability”

and covered by ADA due to 2008 amendments.

May also be covered as “regarded as” an individual with a disability.

Employment: Disclosure of Epilepsy

Pre-Hire: Employer is prohibited from asking applicants about a disability or need for an accommodation.

Applicant can voluntarily disclose but is under not obligation to do so.

When would it make sense/not make sense to

disclose????

Employment: Disclosure of Epilepsy

Once a Job is Offered:

• Can require job-related medical exam (if required of everyone in similar position)

• Ask about disability if ability to perform is an issue

• Individual can disclose – if needs accommodations

Employment: Common Job Accommodations and Epilepsy

Seizures at Work

• carpeting or rubber floor mats

• quiet place to recover

• seizure action plan

• lighting (photosensitivity)

Employment: Common Job Accommodations and

EpilepsyMemory, cognitive impairments or

fatigue

• day shifts or modified schedules written instructions

• handheld electronic organizers/alarms

(smart phone)

• waive non-essential job functions

No requirement to provide first aid or personal care!!

Common Issues in Employment

Job Description includes having a valid drivers’ license: is driving an essential function of the job?

Drug Testing: if testing shows the presence of lawfully prescribed medication must keep information confidential. However, if such medication may

impact job performance and safety – employer can ask for further information from employee’s physician.

Common Issues in Employment

Employer claims epilepsy constitute a

direct threat:

is there a significant risk of substantial harm to the individual or others?

can the risk be eliminated or reduced through reasonable accommodation?

Employment: ADA Remedies

File complaint with the EEOC or ACRD

After agency investigation/findings – right to sue in court

Compensatory and punitive damages available and injunctive relief (getting job or promotion or accommodation)

Resources Job Accommodation Network https://askjan.org/

Epilepsy Foundation Legal Defense Fund http://www.epilepsy.com/get-help/legal-issues

EEOC Q & A for Individuals with Epilepsywww.eeoc.gov/laws/types/epilepsy.cfm

Legal Rights of Children with Epilepsy in Schools http://www.wrightslaw.com/advoc/articles/epilepsy.manual.pdf

Thanks !

http://sonoranucedd.fcm.arizona.edu/

Leslie J. Cohen, JDDirector Sonoran UCEDDAssistant Professor FCM