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Is Epilepsy A Protected Disability At Work?

Published By | Jun 10, 2022 | Disability Discrimination, Employment Discrimination, Employment Law, Firm News, Wrongful Termination |

Recently, in Anderson v. Accuscripts Pharmacy, L.L.C., 2022-Ohio-1663 (8th Dist.), attorney Fred Bean, the partner in charge of Spitz, The Employee’s Law Firm’s Cleveland office, had the opportunity to address whether epilepsy is a disability under Ohio’s discrimination statutes and the Americans with Disabilities Act (“ADA”) with the Ohio’s Eighth District Court of Appeals. While our employee’s rights attorneys believe that epilepsy is a clear protected disability under the ADA as well as Ohio laws, the trial court dismissed the case and held that “Plaintiff failed to submit evidence through an expert, or otherwise, as to whether her epilepsy substantially limited her major life activities, such as caring for herself, performing manual tasks, or whether her condition substantially limits her ability to work.” On appeal, Fred got the Eighth District Court of Appeals to reverse and remand the case for a trial by jury. The sound reasoning by the Court of Appeals makes clear that epilepsy should be protected from discrimination at work. You can read the full opinion here.

Let’s look a little closer.

How do you prove disability discrimination in the workplace?

Best Disability Discrimination Lawyer Answer: A prima facie case for disability discrimination under the ADA and Ohio R.C. § 4112.02 is established where there is evidence of three elements. (Best Law Read: What does prima facie mean?). Those three elements are: (1) the employee is disabled or perceived as disabled by the employer, (2) the employer took adverse employment action, at least in part, because the employee is disabled or otherwise treated the disabled employee differently than similarly situated non-disabled employees, and (3) the employee, though disabled, can safely and substantially perform the job’s essential functions, with or without reasonable accommodation. Hood v. Diamond Products, Inc., 74 Ohio St.3d 298, 1996 Ohio 259, 658 N.E.2d 738. An individual is considered “disabled” for purposes of a discrimination claim brought under R.C. § 4112.02 if she has “a physical or mental impairment that substantially limits one or more major life activities […].” R.C. § 4112.01(A)(13). Importantly, R.C. § 4112.02 was “modeled after the ADA. Thus, in determining whether [a plaintiff’s] allegation establishes disability discrimination, [a court] can look to federal case law and regulations interpreting the ADA for guidance.” Kredel v. Austinwoods, 2008 Ohio 5140, ¶ 8 (7th Dist.); Columbus Civ. Serv. Comm. V. McGlone, 82 Ohio St.3d 569, 697 N.E.2d 204 (1998).

Is epilepsy a disability protected under the law from discrimination at work?

Top Employee’s Rights Attorney Answer: In 2009, Congress amended the ADA with the Americans With Disabilities Act Amendments Act (“ADAAA”). Specifically important here, the ADAAA House Judiciary Committee report specifically identifies epilepsy as a condition substantially limiting one or more major life activities:

[A]n individual with epilepsy who experiences seizures that result in the short-term loss of control over major life activities, including bodily functions (e.g., uncontrollable shaking, loss of consciousness) or other major life activities (e.g., ability to communicate, walk, stand, think) is disabled under the ADA even if those seizures occur daily, weekly, monthly, or rarely. This [ ] rule of construction thus rejects the reasoning in cases like Todd v. Academy Corp. where the court found that the plaintiff’s epilepsy, which resulted in short seizures during which the plaintiff was unable to speak and experienced tremors, was not sufficiently limiting, at least in part because those seizures occurred episodically…. It is thus expected that individuals with impairments that are episodic or in remission (e.g., epilepsy, multiple sclerosis, cancer) will be able to establish coverage [under the ADA] if, when active, the impairment or the manner in which it manifests (e.g., seizures) substantially limits a major life activity.

H.R. REP. No. 110-730 @ 19-20 (2008). (Emphasis added).

Applying this same principle, the Code of Federal Regulations, the mandated body of regulations meant to interpret federal law, including the ADA, under part 29 CFR § 1630.2(j) (titled “Substantially limits”), states the following under subsection (3):

Predictable Assessments – (i) The principles set forth in paragraphs (j)(1)(i) through (ix) of this section are intended to provide for more generous coverage and application of the ADA’s prohibition on discrimination through a framework that is predictable, consistent, and workable for all individuals and entities with rights and responsibilities under the ADA as amended.

29 C.F.R. § 1630.2(j)(3).

Next, in subsections (ii) and (iii) of the Predictable Assessments section, it states:

(ii) Applying the principles set forth in paragraphs (j)(1)(i) through (ix) of this section, the individualized assessment of some types of impairments will, in virtually all cases, result in a determination of coverage under paragraphs (g)(1)(i) (the “actual disability” prong) or (g)(1)(ii) (the “record of” prong) of this section. Given their inherent nature, these types of impairments will, as a factual matter, virtually always be found to impose a substantial limitation on a major life activity. Therefore, with respect to these types of impairments, the necessary individualized assessment should be particularly simple and straightforward.

(iii) For example, applying the principles set forth in paragraphs (j)(1)(i) through (ix) of this section, it should easily be concluded that the following types of impairments will, at a minimum, substantially limit the major life activities indicated: […] epilepsy substantially limits neurological function; […].

29 C.F.R. § 1630.2(j)(3)(ii)-(iii). (Emphasis added).

Respectfully, the Code of Federal Regulations could not be any clearer. In virtually “all cases,” it is “easily concluded” that epilepsy “at a minimum” substantially limits a person’s neurological function. Further, the intent behind this language could not be more apparent—per subsection (i) of the Predictable Assessments section—this language is meant to establish consistency in the law that these types of conditions, i.e. epilepsy, qualify as “disabilities” for purposes of a discrimination claim. See 29 CFR § 1630.2(j)(3)(i).

In addition to the very strong language in the Code of Federal Regulations, the amended language in the ADAAA itself is critical. Specifically, section 12102(4)(E) of the ADAAA provides in relevant part:

(E)(i) The determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures such as …

(I) medication, medical supplies, equipment, or appliances, low-vision devices (which do not include ordinary eyeglasses or contact lenses), prosthetics including limbs and devices, hearing aids and cochlear implants or other implantable hearing devices, mobility devices, or oxygen therapy equipment and supplies.

42 U.S.C. § 12102(4)(E)(i)(I). (Emphasis added).

Stated another way, under the ADAAA, a court, when determining whether a person’s mental impairments constitutes a disability under the law, expressly cannot take into consideration “medication” or any other mitigation measure. This is paramount because it forces the reviewing Court to look at an individual’s medical condition basically “at its worst” as if there were no medication, or other measure, to treat that condition. For someone with epilepsy, the “worst day” is a possibly life-threatening seizure.

Finally, R.C. § 4112, which is modeled after the ADA (and ADAAA), also specifically lists epilepsy as a “mental impairment,” likely qualifying as a disability:

Diseases and conditions, including, but not limited to, orthopedic, visual, speech, and hearing impairments, cerebral palsy, autism, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, human immunodeficiency virus infection, intellectual disability, emotional illness, drug addiction, and alcoholism.

R.C. § 4112.01(A)(16)(a)(iii). (Emphasis added).

In fact, R.C. § 4112.01(A)(16)(a)(iii) goes as far as declaring that epilepsy is a “disease” and includes it in the same category as other life-threatening diseases and disorders such as multiple sclerosis, cancer, heart disease and HIV.

Indeed, the following are all post-ADAAA cases, including in the Sixth Circuit, where an epileptic plaintiff asserted a disability discrimination claim against a former employer, and either: (1) the employer never questioned whether the plaintiff was “disabled” given the applicable law and regulations, or (2) the court otherwise found, without analysis, that the plaintiff was disabled: Martinez v. City of North Richland Hills, — Fed.Appx. —, 2021 WL 742662 (5th Cir.); Anderson v. ProCopy Technologies, Inc., 23 F.Supp.3d 88029 (S.D. Ohio 2014); EEOC v. Pines of Clarkson, 2015 WL 1951945 (E.D. Mich.); Weber v. BNSF Railway Company, — F.3d —, 2021 WL 716645 (5th Cir.); Holmes v. Cutchall Management Kansas LLC, 2012 WL 3071056 (D. Kan.); Moore v. Marriott Intern., Inc., 2014 WL 5581046 (D. Ariz.); Coleman v. Pennsylvania State Police, 2013 WL 3776928 (M.D. Penn.); Roman v. Leggett and Platt, Inc., 2015 WL 6697235 (M.D. Georgia); Lereau v. Northwestern Medical Center, 2019 WL 4963057 (D. Vermont); Tanner v. Charbonneau Industries, Inc., 2019 WL 7040933 (M.D. LA); Pesce v. New York City Police Department, 159 F.Supp.3d 448 (S.D. N.Y. 2016); Henningsen . City of Blue Earth, 184 F.Supp.3d 710 (D. Minn. 2016); Olsen v. Capital Region Medical Center, 2012 WL 1232271 (W.D. MO); Sullivan v. Spee-Dee Delivery Service, Inc., 138 F.Supp.3d 105 (W.D. Wisc. 2015). This ongoing trend of case law across the United States is compelling evidence supporting a conclusion, as a matter of law, that Anderson is disabled as a result of her epilepsy.

Specifically, in Sullivan, the district court for the Western District of Wisconsin found that the plaintiff was “disabled” and the employer did not argue otherwise, even though:

The parties do not dispute that plaintiff was capable of performing all the duties of a route driver. After all, he held the job for six years and defendant does not identify any problems with his work. Further, his epilepsy has been well-controlled by medication; he has not suffered a seizure since 1992.

138 F.Supp.3d @ 1053. (Emphasis added).

So, in Sullivan, as an example of the ease in which courts, since 2010, have determined that epilepsy is a disability, the plaintiff, in a 2015 case, had not suffered any seizure from his epilepsy during the prior 23 years; yet both the Court (and parties) agreed he was disabled under the ADA. Id.

In Anderson, the Eighth District Court of Appeals held:

What is a Disability Under the Law?

Ohio law defines a “disability” as a “physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.” R.C. 4112.01(A)(13).

1. Epilepsy as a Physical Impairment

R.C. 4112.01(A)(16)(a)(iii) provides that a “physical or mental impairment” includes “[d]iseases and conditions, including, but not limited to * * * epilepsy * * *.” Thus, under Ohio law, epilepsy qualifies as “physical or mental impairment.”

2. Substantially Limits

“‘A physical impairment, standing alone, does not necessarily constitute a disability * * *.’” Fitzmaurice v. Great Lakes Computer Corp., 155 Ohio App.3d 724, 2004-Ohio-235, 803 N.E.2d 854, ¶ 12 (8th Dist.), quoting Kirkendall v. United Parcel Serv., Inc., 964 F.Supp. 106, 109 (W.D.N.Y. 1997). To constitute a disability, Anderson must demonstrate that her impairment “substantially limits” one or more of her major life activities. Fitzmaurice at id., citing R.C. 4112.01(A)(13).

Id. at ¶¶ 44-47. Applying the law to the facts, the Eighth District Court of Appeals further held:

There is no dispute that Anderson’s epilepsy qualifies as a physical impairment, which is the first prong of establishing a disability under Ohio law. There is also no dispute that working, not to mention seeing, hearing, speaking, and breathing, are major life activities under Ohio law. … It is undisputed that when Anderson is experiencing a seizure, she cannot work, see, speak, hear, and sometimes breathe.

It is hard to imagine a situation where an employee has epilepsy and his or her seeing, hearing, speaking, breathing, ability to walk, or is not affected while experiencing a seizure. To that end, if you face discrimination by your manager at work or your employer will not accommodate you because of your epilepsy, you will almost certainly be protected under Ohio’s anti-discrimination laws as well as the ADA.

What should I do about disability discrimination on my job?

Best Ohio Employment Firm for Employees Answer: If you have epilepsy, you already have enough to worry about without having to face discrimination at work for a manager or supervisor. If  you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages or refused a workplace accommodate because you have epilepsy then call the right attorney to schedule a free and confidential consultation. (Read: What is the Spitz No Fee Guarantee?). Our employee’s rights lawyers are her for you in Ohio, Michigan, and North Carolina. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.

Disclaimer:

This disability employment law website is an advertisement. The materials available at the top of this epilepsy work rights page and on this employment discrimination website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get a work accommodation for epilepsy?”, “am I disabled under the ADA because I have seizures?”, “what should I do if my manger fired me after I had a seizure at work?”, or “can my boss retaliate against me because I asked for a work accommodation for my epilepsy?”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney, Brian Spitz or any individual attorney.