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Your employee is diagnosed with epilepsy after suffering a seizure at work. After a period of leave, the employee is cleared by a physician to return to work. Under the Americans with Disabilities Act (ADA), you must bring the employee back to work and provide reasonable accommodations to enable him to perform the essential functions of his job, as long as the employee does not impose a significant risk of substantial harm. To determine reasonable accommodations, you engage in the interactive process, during which you learn the employee’s seizures are controlled by an anti-epileptic medication. The employee works with potentially dangerous equipment and chemicals. Are you able to require that the employee take his medication as a condition of employment?

In a recent lawsuit filed in federal court against a Michigan paper manufacturer, the U.S. Equal Employment Opportunity Commission (EEOC) signaled that you cannot. The company operates a paper mill where the employee worked as a production worker. According to the EEOC’s complaint, the company violated the ADA when it required the employee, as a condition of returning to work, to agree to take his medication under observation by a plant nurse or designated co-worker.

In the context of employees taking medication for mental illnesses, the EEOC has advised that the decision to take medication should be made by the employee with a disability, not by the employer. (See EEOC information discussion letter (Nov. 7, 2000). The EEOC advised that if an employee refuses to take medication and as a result is not qualified for a job, with or without reasonable accommodation, or poses a direct threat, the employer can take appropriate action. In an Enforcement Guidance, also issued in 2000, the EEOC suggested that medical monitoring may be done (in the absence of actual performance problems) only for employees in positions of public safety where there are concerns about a direct threat.

The EEOC’s recent lawsuit suggests that requiring the employee to take medication under the supervision of the employer is not a reasonable accommodation.  It is unclear from the complaint whether the EEOC disapproves of the employer’s directive that the employee take his medication or the requirement that he take the medication under the employer’s observation. And it is not known whether the physician cleared the employee to return to work only if the employee continued to take his medication. These issues will likely be clarified as the case proceeds.

Employers facing similar situations should exercise caution and seek legal counsel. Generally, the decision to take medication — even if that medication is necessary to enable the employee to perform the job — is the employee’s to make. As we follow this EEOC lawsuit, it may help clarify the tension between an employer’s legitimate safety concerns and the employee’s rights protected under the ADA.

This post is the first in a series addressing workplace disability issues.