Missing Work and Your Rights under Federal Law (ADA Title II)
While many people with epilepsy are able to maintain regular employment without interruption, others may need to miss work because of seizures, changes in medication, or to visit a doctor for regular monitoring. Some people fear that they will lose their jobs if they take time off, either because they will violate the employer's attendance policy or the employer just will not want to keep an employee on the payroll who cannot be at work 100 percent of the time. Federal laws and some state laws may, however, protect you in such a situation as long as you do some advance planning. These federal laws are known as the Americans with Disabilities Act and the Family and Medical Leave Act.
Request a Reasonable Accommodation under the ADA
Under the ADA, employers with 15 or more employees may not discriminate against a qualified individual on the basis of his disability. Employers must provide a reasonable accommodation, if necessary, as long as it does not impose an undue financial or administrative burden on the employer. One reasonable accommodation may be time off for medical reasons. This may be a reasonable accommodation even if the employer has its own attendance policy and taking the leave would normally violate the policy. While employers can continue to enforce attendance policies as long as they apply the policy in the same way for all employees, the ADA may require the employer to make a reasonable modification to the policy if necessary to provide an individual with a disability a reasonable accommodation.
Flexible leave policies may also be considered as a reasonable accommodation when an individual with a disability may require time off due to their disability. Under the ADA, an employer is not required to provide additional paid leave as an accommodation, but should consider allowing use of accrued leave, advanced leave or leave without pay, where this will not cause an undue hardship.
To take leave as a reasonable accommodation, the employee must request it. While the request need not be in writing, it is often helpful to put it in writing. Also, the request needs to be made in advance. Employees should keep in mind that even if taking leave would be the best accommodation available; employers are not required to provide it if another effective accommodation is available or if providing the leave would impose an undue financial or administrative burden on the employer. You may also be entitled to leave as a reasonable accommodation under your state's law. If you believe your rights have been violated, you may file a complaint with the Equal Employment Opportunity Commission (the federal agency responsible for enforcing the employment provisions of the ADA) by calling (800) 669-4000 (voice) or (800) 669-6820 (TDD). While you are not required to have an attorney to file a complaint, you may wish to consult a local attorney to learn how the law applies in your particular situation and for advice on how to proceed.
For information on obtaining a referral to an attorney in your area that may be able to provide specific advice or representation, please visit the website for the Jeanne A. Carpenter Epilepsy Legal Defense Fund, or call our Information and Referral Service toll free at (800) EFA-1000 ((800) 332-1000). For information on advocacy, please visit our website. Alternatively, you may contact the EEOC or visit the agency's website. See in particular the EEOC's Questions and Answers about Epilepsy in the Workplace.
Take a Leave of Absence under FMLA
If you need to take time off work because of your own medical condition or that of a family member, you may also be entitled to leave under FMLA. The FMLA allows qualified employees to take up to 12 weeks of unpaid leave during a 12 month period for medical reasons, the birth or adoption of a child, or to care for a child, spouse or parent who has a "serious medical condition.". Under the FMLA, a serious medical condition includes an illness, injury, impairment or physical or mental condition that either requires inpatient, hospice or residential medical care or continuing treatment by a health care provider.
To be able to take leave under FMLA, you must have worked for an employer with 50 or more employees, for one or more year(s), and a minimum of 1,250 hours within the previous 12-month period.
If you qualify for leave under FMLA, you do not need to take your leave all at once. You may request a reduced work schedule with fewer hours or days as an alternative instead of a leave of absence. For example, you may request several hours off per week for medical appointments or delay the start of your workday by one hour during a change of anticonvulsant medication if you require regular medical monitoring.
Employers may request certification from your physician or the medical provider caring for your family member. The physician's note should include the condition, duration of the condition, and in cases of family member care, for what purposes the employee is needed to provide care. Employees should specifically request FMLA leave from their employer and in cases where advance planning is possible, such as expected births or medical procedures, must give 30-day notice to the employer.
While you are on leave, your employer is not required to pay you your salary. Many employers do, however, allow you to exhaust your accrued sick and vacation time so that you can continue to be paid during this absence. Depending on the terms of the policy, you may also be able to get benefits under a private short-term disability insurance policy.
Employers are, however, generally required to continue payment of employee benefits for the duration of the leave. The law also guarantees that an individual will have the opportunity to return to the same or an equivalent position with the same benefits, pay, and other conditions of employment when the leave is over, unless the employer can show that returning the individual to his old job would cause "substantial and grievous economic injury.'' Employers are also prohibited from adversely affecting seniority benefits as a result of taking FMLA leave or from terminating or otherwise discriminating against employees for requesting leave. Some employers allow employees to take more leave or provide more generous benefits than FMLA requires. State law may also offer additional protections.
For more information about your rights under the FMLA, contact the Wage and Hour Division of the U.S. Department of Labor (DOL) at (866) 4-USWAGE (866-487-9243), TTY: (866) 487-9243, or visit the DOL website. If you believe your rights under the FMLA have been violated, you should contact your local Wage and Hour Office of the U.S. Department of Labor. Contact your state's department of labor for information about your state's law. Also, as mentioned above, you may contact the Jeanne A. Carpenter Epilepsy Legal Defense Fund for legal assistance, or call our Information and Referral Service.