Safety and OSHA News

Employee suffered seizures at work: Safety vs. disability discrimination

When a case involving an employee’s seizures at work went to a federal appeals court, the employer said it was ensuring safety while the worker said it was a case of disability discrimination.

Andrea Olsen worked as a mammography technician at the Capital Region Medical Center (CRMC) In Missouri. She has epilepsy and suffered numerous seizures at work. CRMC required Olsen to follow protocols and recommended safety standards while she operated the radiographic equipment.

Olsen’s seizures were unpredictable. Her first one at CRMC happened in 2004. During a seizure at work in 2007, Olsen hit her head on a counter and bit her tongue and cheek.

After she suffered more seizures on the job, CRMC placed Olsen on paid administrative leave in August 2008.

While on leave, Olsen consulted a neurologist, who gave her a letter approving her return to work. She resumed her duties. In November 2008, a seizure caused her to fall, resulting in a head wound that required staples.

Once again, after determining that the risk to patients and to herself was too great, CRMC placed her on leave.

The medical center tried a number of accommodations to eliminate environmental triggers to Olsen’s seizures, including:

  • removing mold
  • investigating cleaning agent ingredients
  • having other technicians handle patients who wore heavy perfumes
  • installing anti-glare filters on lights
  • eliminating scrolling from computers
  • covering x-ray films to reduce brightness
  • permitting Olsen to wear sunglasses, and
  • educating Olsen’s co-workers about epilepsy and how to treat someone who is having a seizure.

Olsen returned to work. Despite the accommodations, she suffered 14 seizures during a 27-month period. Some of the seizures resulted in injuries to Olsen, including stoppage of breathing.

Two seizures happened when Olsen was administering mammograms to patients. One patient complained to CRMC, saying she was concerned for patient safety.

A report by Olsen’s supervisor about the second incident noted that the patient being given a mammogram during Olsen’s seizure “seemed very shaken.” In this incident, the patient caught Olsen before her seizure caused her to drop to the floor.

Next, CRMC placed Olsen in an alternate position as a temporary file clerk. She suffered seizures twice in the clerk position and was eventually placed on unpaid administrative leave.

In 2011, after a change in her medication, Olsen notified CRMC that her seizures were under control and that she had also regained her driver’s license. CRMC offered to reinstate Olsen at her prior rate of pay with full benefits, but Olsen rejected this offer and CRMC eventually terminated her.

Olsen filed a charge of discrimination based on disability among other factors. CRMC moved for summary judgment on the basis that Olsen failed to establish that she was qualified for the mammography technologist position. The medical center said she couldn’t perform the essential functions of her position even with accommodations and that her inability to do so caused a direct threat to herself and others.

A federal district court granted CRMC’s request for summary judgment, finding that Olsen produced no direct evidence of discrimination. She then took her case to a federal appeals court.

Was she a ‘qualified individual?’

Olsen argued the district court shouldn’t have thrown out her case because she is a qualified individual with a disability under the Americans with Disabilities Act (ADA).

She said the only accommodation she needed was intermittent leave to rest and recuperate following a seizure. Olsen also said she can perform all her job functions, except during a seizure.

The appeals court noted that to successfully prove an ADA claim, an employee must show she is qualified to perform the essential functions of her job, with or without accommodation.

Given that requirement, the court said Olsen isn’t a “qualified individual” under the ADA:

“An essential function of Olsen’s job included insuring patient safety. Nothing in the record establishes Olsen could adequately perform that function during the indefinite periods in which she was incapacitated.”

Because Olsen wasn’t a qualified individual to perform the job with or without accommodation, the appeals court upheld the district court’s grant of summary judgment to CRMC. The court wrote:

“The hospital need not subject its patients to potential physical and emotional trauma to comply with its duties under the ADA.”

What do you think about the court’s ruling? Let us know in the comments below.

(Olsen v. Capital Region Medical Center, U.S. Circuit Crt. 8, No. 12-2113, 5/7/13)

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Comments

  1. cparris says:

    I agree with the courts decision. I work at a steel fabrication plant and we brought in an employee and this temporary employee had a seizure the first week here. I don’t approve of discrimination but to me this employee was in grave danger here due to the fact that the seizures were unpredicitable and he could have struck his head on numerous pieces of steel and suffered a head injury or death. We let him go because we felt it was unsafe for him to work here. I hate doing that to someone but in this case he could have been seriously injured, we felt he would be better suited to another envorinment. Thankfully he was a temporary employee and we could just let him go without any adverse affects on the company.

    • I know..but from the side of an Epileptic parent..no one wants them to work for them
      ..for safety reasons, but the govt wont grant them SS Disability..its a tough disease to find gainful employment.no matter how qualified the individual is..it’s like being between a rock and a hard place..the Big E and seizures…suck…

  2. Most disabilities usually means there is a period of incapacitation even with the accommodation. Ensure patient safety? Give me a break… If I was a diabetic and continued to have low blood sugar and needed to take care of it, would that also mean that I was unable to do my job?

    • A diabetic would be a qualified individual in this type of job. Diabetics have the onus of taking care of their blood sugar, but employers make reasonable accommodations for those individuals.

  3. I give this gal props for wanting to continue working. It puzzles me though that she is in the medical field and doesn’t get by doing so she is putting herself and or patience at risk.

  4. AlPolito says:

    I agree with the court. I often root for the underdog but in this case the clinic where she worked did numerous things to accommodate her issue, most likely at significant expenditure of time and money. I think the tech needs to be realistic about what she can and can’t do.

  5. Aljav71 says:

    In 2011, after a change in her medication, Olsen notified CRMC that her
    seizures were under control and that she had also regained her driver’s
    license. CRMC offered to reinstate Olsen at her prior rate of pay with
    full benefits, but Olsen rejected this offer and CRMC eventually
    terminated her.

    Did I miss something or did she not say she was ok and they offered her job back and then she said no???? Sounds like a no brainer untill she said no. Did she find a lawyer and convinced her she was going to get rich and sue the company?

  6. It looks like Fred is a little biased, maybe a little panicked. The
    stigmatic description, unpredictable, hit her head on the counter, risk to
    patients, stopped breathing, bit her tounge.
    He makes some wild claims of environmental
    trigger that shows his ignorance. He even
    makes an adolescent pun “seemed very shaken.”
    You don’t have to generate stigma to discuss the case. Respect her privacy.

    • fredhosier says:

      “Seemed very shaken” were the exact words used in the description of the case. The phrase wasn’t chosen by the writer, it was the description in the case. There was no pun intended by the writer of this article. The claims are not mine, but are contained in documents of the case.

  7. She may have felt insulted… My hubby has seizures but has been told by the State he can’t work no more because he suffered brain damage with his seizures. It hurts him not to work and to have nothing to do all day makes him sad at times. I have a divisibility also but I can work I feel bad about working when my hubby likes to and wants to work. I also don’t get paid my worth I’m paid less because I’m Disabled and a female. The men in my field make 3 to 6 times I do. I have had many employers use my skills and then not pay because I’m disabled they feel they don’t have to pay me anything.

  8. I believe this lady has every rights to work
    But patient saftey is of paramount importance and the patient must come first. I feel her company could have protected her pay whilst working as a admin worker whilst under her neurologist. If seizures continue CRMC could have offered her deployment on the same salary doing a less risky job at least not lone working. Patient safety is a prority as per protocols and whilst the employee will have been moved she could take the oppurtunity to re-evaluate her job spec. Unfortunately we all want to do the job we love but being realistic can only do this if we are safe to do so. i understand the situation and had to come away from nursing for a while i hated this but also would not put myself before the patient. This company made all reasonable adjustments but protected pay and same salary deployment would be a fair offer.

  9. Colleen Gutman says:

    I have epilepsy and have worked for the same company for 33 years. I was in the position of managing the customer service counter. I had no problems, and have a few acknowledgements for exceptional work. I was transferred to a different location in the same position. I requested to not be transferred as a reasonable accomodation, because everyone I worked with knew I had seizures, could recognize the proceeding aura, and knew what to do, and the sometimes embarrassing side effects. This transfer was not necessary, they moved the assistant into my spot, and I had trained her. She could have been transferred with her promotion. My seizures were very controlled at this time. They proceeded to demote me when I asked them to transfer me closer to my home if they felt the transfer was necessary. They did not tell me I was being demoted when they transferred me to a closer location. They proceeded to put me in a checking position after having done recordkeeping, and customer service work for 30 years. I had to have carpal tunnel surgery after 3 months of checking, and spinal fusion surgery. ( I was 54 at the time, and had not checked in 30 years). When I was on light duty from the hand surgery, with both hands in braces they instructed me to get on a step ladder to rotate product. I fell off of it, suffering a head laceration requiring staples and a concussion. The fall was not caused by a seizure. Workmans comp Wil not cover it, saying i have an idiopathic condition. They have harassed me terribly in the last 3 years, and will not put me back in customer service, a job I excelled at. I have had an increase in seizure activity from all the stress and harassment. I want to continue working. I have requested a different store because of the harassing and hostile work environment that creates stress which triggers seizures. I cannot seem to get any answers from HR, my union or management for their demotion, and treatment. I have an excellent job history. I feel like they will stop at nothing to force me to quit, or to fire me for having an increase in seizures now. Any ideas for how to handle this??

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