On occasion, an employee’s medical condition may cause employers concern over that person’s ability to operate heavy machinery or otherwise to work in a hazardous environment. For example, an employee with epilepsy has several seizure events while working on the production floor. The employer is concerned that such event could cause the employee to come into contact with moving parts or other dangerous equipment. What steps may the employer take to address these concerns?

Last month, the Equal Employment Opportunity Commission sued a Michigan paper manufacturer under the Americans with Disabilities Act on behalf of an epileptic employee. The EEOC alleges that the company conditioned the employee’s return to work after seizure events on his taking his epilepsy medicine in front of a supervisor. The EEOC seeks an injunction to prevent the employer from imposing what it characterizes as an overly protective work rule.

Under the ADA, employers may assert a “direct threat” defense to an ADA disability discrimination claim, where it can demonstrate that returning the employee to the workplace would create an immediate danger of death or injury to him or his co-workers. For employees with seizure disorders, this typically allows the employer to condition return to a hazardous working environment on medical clearance from the physician, and assurances that the condition will not reoccur.

In this case, the employer appears to have gone beyond this response by requiring observed use of the anti-seizure medication. Although not disclosed in the EEOC’s press release on the suit, the employer may have faced an employee who had refused or failed to take prescribed medication in the past. The EEOC asserts that this additional requirement is overly paternalistic and inconsistent with treatment of other employees. From the employers’ perspective, returning the employee to work without clear assurances of compliance with his doctor’s instructions risks another seizure episode with possibly tragic circumstances.

The federal court will need to balance these interests. Employers faced with similar situations should develop and plan a deliberate process for assessing job hazards, the employee’s individual medical situation and steps that can be taken to reduce or eliminate the risk of injury. If the employer eventually excludes the employee from the job, this step must be backed by clear evidence of the specific risks presented in the event of a medical episode.