When may an employer ask if epilepsy, or another medical condition, is causing an employee's performance problems?


Several times during the past few months, the clerical supervisor, Marsha, has observed a newly hired secretary, Walter, staring blankly, making chewing movements, and engaging in random activity. On these occasions, Walter has appeared to be unaware of people around him and has not responded when Marsha has asked if he was okay. Walter has no memory of these incidents. Can Marsha ask Walter if a medical condition, such as epilepsy, is affecting his performance?


In this instance, yes. Marsha may ask Walter whether a medical condition is affecting his ability to perform the essential functions of his job. Generally, the Americans with Disabilities Act (ADA) allows an employer to ask disability-related questions or require an employee to have a medical examination when it knows about a particular employee's medical condition, has observed performance problems, and reasonably believes that the problems are related to the medical condition. At other times, an employer may ask for medical information when it has observed symptoms, such as extreme fatigue or irritability, or has received reliable information from someone else (such as a family member or coworker) indicating that the employee may have a medical condition that is causing performance problems. Often, however, an employee's poor job performance is unrelated to a medical condition and generally should be handled in accordance with an employer's existing policies concerning performance.

Source: EEOC Publication: Revised Questions and Answers about Epilepsy in the Workplace and the Americans with Disabilities Act, http://www.eeoc.gov/laws/types/epilepsy.cfm; reported in Employment Practices Guide, New Developments ¶5373.

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