If an employer learns an applicant has epilepsy after extending a job offer but before the individual begins working, can the offer be withdrawn?


You extended an offer of employment to an experienced chef for a position in a hotel resort. During the post-offer medical examination, the applicant disclosed that he has had epilepsy for 10 years. When the doctor expressed concern about the applicant's ability to work around stoves and use sharp utensils, the applicant explained that his seizures are controlled by medication and offered to bring in information from his neurologist to answer the doctor's concerns. He also pointed out that he has worked as a chef for seven years without incident. The owner wants to avoid any potential problems, pull the job offer, and look for another chef. Can you withdraw the offer under these circumstances?


No, not in this instance. Under the Americans with Disabilities Act (ADA), when an applicant discloses that he has epilepsy after receiving a conditional job offer, an employer may ask the applicant additional questions about his epilepsy — such as whether he has held the same or a similar job since his diagnosis; whether he takes any medication; whether he still has seizures and, if so, what type; how long it takes him to recover after a seizure; and/or whether he will need assistance if he has a seizure at work. The employer also may send the applicant for a follow-up medical examination or ask him to submit documentation from his doctor answering questions specifically designed to assess the applicant's ability to perform the job's functions safely.

An employer may not withdraw an offer from an applicant with epilepsy if the applicant is able to perform the essential functions of the job, with or without reasonable accommodation, without posing a direct threat (that is, a significant risk of substantial harm) to the health or safety of himself or others that cannot be eliminated or reduced through reasonable accommodation. In this instance, because there is no evidence that the applicant will pose a significant risk of substantial harm while performing the duties of a chef, the employer may not withdraw the job offer.

Source: EEOC’s “Questions & Answers about Epilepsy in the Workplace and the Americans with Disabilities Act (ADA),” reported in the Employment Practices Guide ¶5373

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