The EEOC says no. In a recent case, the EEOC filed suit against a paper company in Michigan over this issue. The employee had a seizure at work and was diagnosed with epilepsy. After a period of leave, the employee was released to return to work by his physician.
Wise employers now know the "tension":
- The ADA says the employer must bring the employee back and provide reasonable accommodation, so long as the employee is not a risk to himself or to others.
- The standard is whether the employee poses a significant risk of substantial harm.
- The EEOC's regulations also say the employer must have an interactive discussion with the employee about possible accommodations.
- In this case, the employer apparently was concerned about the employee working and having another seizure in a hazardous workplace, a typical concern in a manufacturing facility with large, sophisticated equipment.
- So, employer decides to have a written agreement with the employee requiring, among other things:
- The employee must take his anti-seizure medication; and
- The employee must do so "under observation."
The EEOC has filed suit. It is not clear yet whether the EEOC is objecting to the "take your medicine" directive from the employer or only objecting to the "under observation" requirement. The EEOC interprets that requirement as meaning someone in the management team has to observe each work day the employee actually taking the medication.
This case is worth watching further. Here are some key points:
- Has the doctor provided a release for the employee to return to work safely only if the employee continues to maintain his regimen of treatment?
- Or, is the release not so conditional?
- If the release is conditional, it would appear the employer has a duty to require that the employee take his medication as a condition to returning to work.
- Yet, is that what the EEOC finds objectionable?
- Or, does the EEOC find objectionable only the requirement that the medicine be taken "under observation"?
- Interestingly, in its Complaint, the EEOC alleges that the employer has treated this employee differently than it treats its non-disabled employees.
- However, depending upon its nature, that differing treatment may actually be required by the ADA.
- The nature of the ADA's "reasonable accommodation" requirement is that disabled employees are treated differently – i.e., more favorably – than non-disabled employees, so long as that more favorable treatment is "reasonable."
With workplace safety concerns ever-present for employers, especially for manufacturers with workplaces containing inherent hazards, it will be interesting to see how this case unfolds.
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