Epilepsy and the Law: Education and Employment

1. Epilepsy and the Law:  Education and Employment Leslie J. Cohen, JD Director Sonoran UCEDD Assistant Professor FCM

2. What is the Sonoran UCEDD? • University Center for Excellence in Developmental Disabilities • 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.

3. 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.

4. 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”

5. Epilepsy : Legal Rights and Responsibilities

6. 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

7. 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.

8. Questions to Ask in Developing IEP • 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? Legal Rights of Children with Epilepsy in School and Child Care (2nd Ed)

9. 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

10. Section 504 • Federal Anti-Discrimination Law • Student is not adversely impacted academically by epilepsy • Student Needs Reasonable Accommodation • Must develop “504 Plan”

11. 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

12. 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

13. Employment: Americans with Disabilities Amendments Act of 2008 • ADA prohibits discrimination on the basis of disability in all aspects of employment. • Hiring • Benefits • Terms and Conditions • Promotion • Job Duties • Discipline

14. 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.

15. 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.

16. 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????

17. 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

18. Employment: Common Job Accommodations and Epilepsy • Seizures at Work • carpeting or rubber floor mats • quiet place to recover • seizure action plan • lighting (photosensitivity)

19. Employment: Common Job Accommodations and Epilepsy • Memory, 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!!

20. 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.

21. 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?

22. 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)

23. 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 Epilepsy www.eeoc.gov/laws/types/epilepsy.cfm • Legal Rights of Children with Epilepsy in Schools http://www.wrightslaw.com/advoc/articles/epilepsy.manual.pdf

24. Thanks ! Leslie J. Cohen, JD Director Sonoran UCEDD Assistant Professor FCM http://sonoranucedd.fcm.arizona.edu/