For most jobs, simply having occasional seizures will not significantly affect the person’s ability to do the job’s essential functions. Having seizures does not render a person unqualified under the ADA simply because seizures require occasional use of sick time, do not look good, or may result in injury or possible use of worker’s compensation. In the U.S. example, employers do not have to offer a job or retain an individual in a job because of a disability if the individual poses a “direct threat” to safety. Direct threat is defined as “a significant risk of substantial harm which cannot be lessened by reasonable accommodation.”

Except in very limited circumstances (e.g., commercial airline pilots), a mere diagnosis of epilepsy will not mean that an individual poses a direct threat. Similarly, a possibility or even a probability that an individual will experience a seizure at work is usually not enough to make that person a direct threat without showing that the individual’s workplace or essential job duties pose a particular risk of harm. An evaluation must also be made as to whether the factors causing the increased risk can be reduced through a reasonable accommodation. Using laws similar to the ADA, people with epilepsy have successfully obtained and retained such high-risk jobs as firefighter, police officer, and butcher (see, e.g., the case of Jansen v Food Circus Supermarkets¹³).

Unsubstantiated fears about risks from the employment environment may not be used by an employer to disqualify a person with epilepsy. Under the ADA, employers must evaluate the individual and the specific situation using reasonable medical judgment that relies on the most current knowledge and best objective evidence. If the specific job tasks suggest possible safety concerns, the treating physician may be asked by the employer or employee for advice about whether the employee should avoid certain tasks. In evaluating a person with epilepsy for a position that might pose safety concerns, it is important to consider the type of job, the essential job duties, the degree of seizure control, the types of seizures (whether the person has simple partial onset to warn of possible evolution), the person’s reliability in taking prescribed seizure medication, any side effects of medication, and any accommodations that might lessen the risk.¹⁷

The ADA’s focus on individual capabilities is especially important for the individual with epilepsy because the term epilepsy refers to a broad range of symptoms and underlying causes. Depending on their individual circumstances, some people with active seizures should avoid certain job tasks, such as driving, or certain environmental conditions, such as exposure to open fire, hot substances, dangerous moving objects, mechanical and electrical hazards, and situations in which a danger of falling exists. If an employee is no longer able to do the job for which he or she was hired, even with reasonable accommodations, an employer may be required to reassign that employee to another position, if one is available, for which the employee is qualified. The position should be equivalent in terms of pay and other job status. Within this scheme, an employer is permitted to reassign an individual to a lower-grade position if that is the only position available for which the individual is qualified.

Employers who are covered by the ADA are prohibited from asking any questions about whether an applicant has a medical condition or about the nature and severity of the condition until after they have extended the applicant a job offer. This is particularly important for individuals with epilepsy, who historically have been denied interviews and refused employment solely because an employer learned of their epilepsy. Again focusing on the U.S. situation, once a job offer has been made, an employer may ask medical questions or request that an individual have a medical examination, so long as all employees selected for that job classification are required to do so. Once an individual has been employed and is on the job, medical inquiries must be job related and consistent with business necessity. In other words, the need for the examination must be triggered by some evidence of problems related to job performance or safety, or an examination may be necessary to determine whether individuals in physically demanding jobs continue to be suitable for duty. In addition, a request for reasonable accommodation by an employee may trigger medical inquiries to verify the need and scope of accommodation. All medical information must be kept separate from an employee’s personnel file, and the information must be kept confidential.

Many countries have enacted privacy laws, and transgression of these may provide an alternate source of remedy if the person with epilepsy has been exposed against his or her will.

Individuals may file employment discrimination complaints under the ADA with the U.S. Equal Employment Opportunity Commission (EEOC) or, in many cases, with their state Human Rights Commission. If an employer is not covered by the ADA, because the business does not have 15 or more employees, one should investigate whether there is a state law that applies. Further information about state antidiscrimination laws should be available from the state Human Rights Commission (HRC), and most industrialized countries now have local equivalents of the EEOC and HRC. These bodies have international legitimacy because their host nation is usually a signature nation of the International Parent Body run under the auspices of the United Nations. The U.S. example is far from unique, and was merely provided as a focus on which local proceedings can be examined and used to protect the rights of people with epilepsy.