Legal Rights News Briefs
Epilepsy Foundation Joins Amicus Brief to Address Blanket Exclusion Rule
The Epilepsy Foundation recently joined an amicus brief with other disability organizations to address the blanket exclusion rule upheld by the 9th Circuit in Santiago Lopez v. Pacific Maritime Association.
In this 9th Circuit case, the issue is the defendant's hiring policy to permanently exclude any applicant for employment as a longshoreman if he screened positive for drugs or alcohol at any time during the application process. Lopez screened positive in 1997 and reapplied after he was clean and sober in 2004. He was excluded because of this one-strike policy. The 9th Circuit also ruled that to prove his case, the Plaintiff was required to show the same statistical showing that is required in Title VII cases.
To review the amicus brief, click here.
Federal Court in Baltimore Grants Award in ADA Discrimination Case
A federal court in Baltimore has awarded a police detective $225,000 in an ADA employment discrimination case. William Blake brought a suit against Baltimore County, Maryland after a commanding officer ordered that he undergo a neurological testing to determine if he was fit for duty ten years after he experienced a single seizure and received clearance to return to work. Mr. Blake alleged that the testing was ordered in retaliation for his testimony in favor of a fellow officer who was forced into retirement because of epilepsy. The commanding officer provided no justification for the testing, and a co-worker testified that Mr. Blake was in no risk of endangering the Department or the public. The court found that the testing requirement amounted to disability-based discrimination, and an invasion of Mr. Blake’s rights under the ADA.
In January 2010, the U.S. Department of Justice opened an investigation into whether Baltimore County officials have established a pattern and practice of violating the rights of employees under the ADA.
Court of Appeals Allows Case on Improper Use of Medical Information from Pre-Employment Drug Testing to Go to Trial
In this case, Harrison, an applicant for employment with Benchmark Electronics, tested positive for barbiturate use on a pre-employment drug test and was denied the job (the test result was due to his lawful use of antiseizure medication). The job applicant claimed the employer, in following up on the test result, sought information about the applicant’s epilepsy (rather than simply inquiring about whether he had a lawful medication prescription), and denied him the job when it learned he had epilepsy, in violation of the ADA. In a summary judgment decision (without going to trial on the facts), the trial court ruled against the applicant, finding no ADA violation. The applicant appealed the case to the Eleventh Circuit, and the Epilepsy Foundation filed an amicus brief, as did the EEOC, arguing that the employer had violated the ADA’s pre-employment medical inquiries prohibition, which is intended to prevent employers from denying job opportunities based on stereotyped notions of disability before consideration of the applicant’s job qualifications. The Court of Appeals has reversed the trial court, holding that a reasonable jury could infer that the employer based its decision not to hire the applicant on information gleaned from an improper pre-employment medical inquiry. »Read the Court of Appeals Opinion and the Foundation’s amicus brief.
Epilepsy Foundation Files Amicus Brief in a Workplace Termination Case
In November 2009, the Foundation filed an amicus brief in the 2nd Circuit Court of Appeals in support of a client of Jeanne A. Carpenter Legal Defense Fund cooperating attorney. In this case, the client was terminated from his position as a mechanic with United Parcel Service (UPS) because he does not qualify for a DOT license due to his history of seizure disorder. In its brief, the Foundation urges the Court to find that the employer’s reliance on needing DOT certification to be unrelated to the actual duties of the mechanic’s position and thus, a pretextual reason to exclude the client from employment. »Read the Foundation’s amicus brief.
Largest U.S. Child Care Provider Adopts Nationwide Seizure Care Policy
Working in collaboration with the Epilepsy Foundation, the largest corporate child care provider in the U.S., Knowledge Learning Corporation, which operates KinderCare and Knowledge Beginnings child care centers, has adopted a comprehensive written policy on providing first aid to children with epilepsy. The policy will help ensure that children with epilepsy attending any of the company’s 2200 centers nationwide are administered, as needed, both routine and emergency antiseizure medications, such as rectally administered diazepam (sold under the brand name Diastat AcuDial). In administering medication and providing other care, child care center staff will follow a standardized seizure management plan. The plan, developed with oversight by the Foundation, is to incorporate specific instructions from the child’s parents and treating physician, including information on determining when to call 911 to respond to prolonged or repetitive seizures.
Child Care Center Chain Agrees to Administer Emergency Medication
In 2008, the Epilepsy Foundation joined in a lawsuit against a national chain of child care centers that refuses to administer a potentially life-saving medication to children with epilepsy. The suit was originally filed on behalf of an 8-year-old California boy when a Tutor Time Learning Centers, LLC, child care center refused to administer diazepam rectal gel (sold under the brand name Diastat AcuDial). The Foundation joined the lawsuit as a plaintiff to represent the many children with epilepsy around the country who may have been prevented from attending any of the 200 child care centers affiliated with the Tutor Time chain because of their refusal to administer this medication. The case settled in July 2009. The terms of the settlement are confidential. »Read more.
Wrongful Death Suit Filed in Case of Man with Epilepsy Restrained and Tasered by Police
On August 5, 2008, the parents of a man with epilepsy who died after being restrained and tasered by Stanislaus County (California) Sherriff’s Department deputies filed a lawsuit against the County alleging that the deputies used excessive force in violation of the man’s constitutional rights. »Read More
Comments Submitted on Proposed Genetic Information Nondiscrimination Regulations
On May 1, 2009, the Foundation submitted comments to the Equal Employment Opportunity Commission regarding its proposed regulations to implement Title II of the Genetic Information Nondiscrimination Act of 2008 (GINA). The proposed GINA regulations would prohibit the use of genetic information to discriminate in employment and regulate how employers may obtain and store genetic information. The proposed regulations are quite comprehensive and would generally establish clear and reasonable standards. However, the Foundation believes the regulations could be improved by narrowing the exceptions allowed to the general prohibition on employers concerning their acquisition of genetic information. Our comments provided specific suggested language changes to address these concerns. »Read the comments.
Advocates’ Guidance on Reasonable Accommodations in Employment.
This guidance is a chapter from a manual (under development by the Fund) on legal strategies to address employment discrimination against people with epilepsy. The guidance analyzes the obligations of employers under the ADA to make workplace adjustments to enable qualified workers with epilepsy to successfully perform their jobs. Common accommodations discussed include modifications in work schedules, reallocation of job duties such as driving, telecommuting and reassignment.»Read More
Economic Stimulus Bill Expands Eligibility for COBRA and Provides a Significant Reduction in the Required Insurance Premiums
The Foundation has issued an updated fact sheet summarizing federal laws (COBRA and HIPAA) that help individuals obtain and maintain employer-provided group health insurance coverage and limit the effect of “pre-existing condition” clauses that affect many people with epilepsy. The fact sheet discusses the expanded COBRA benefits under the Economic Stimulus bill for certain qualified individuals. »Read the legal fact sheet.
Foundation Requests DOT to Issue Revised Medical Standards for Truck Drivers with Epilepsy
The Epilepsy Foundation wishes to raise serious concerns about the recent recommendations of the Federal Motor Carrier Safety Administration’s Medical Review Board (MRB) concerning the medical standards for commercial motor vehicle (CMV) drivers with epilepsy. »Read More