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Has my employer violated ADA by not accommodating my disability?

Modesto, CA |

I am a forklift operator and have been employeed by the same company for 5 years. I recently was diagnosed with epilepsy after having brain surgery for aneurysm. I suffered a seizure at work 08/2011 and was not able to return to work until dr gave me a full release without any restrictions. He had restricted driving. 01/2012 I received a termination letter from my employer. By 07/2012 I was able to return to my job and hired back on . 11/2012 I suffer another seizure at work. Although they have not terminated my job, they are not allowing me back until full release. Once again, my dr has released me to work but no driving until DMV clears Dl. The Company's President has requested a Dr. evaluation, but its been over 2 weeks. What can I do in the mean time?

Attorney Answers 3

Posted

Until the doctor thinks it is safe for you to drive, you will not be able to get your driving job back. In order to get reasonable accommodation you have to be able to do your job with or without accommodation. It does not seem there is any accommodation that would allow you to do your job while you have epilepsy. Depending where you are working you might ask your employer to put you in another job. In the meantime, you should be collecting disability. Your situation is unfortunate and you may find it helpful to contact the EDD about getting trained in other skills.

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Posted

Your situation needs an assessment of the specific facts. The Avvo board is not set up to handle the kind of detailed analysis needed to offer helpful guidance. Avvo works best for short, specific questions that allow for short, specific answers. Perhaps more importantly, anyone can read the discussions on Avvo so they are not confidential. The employer or whomever is involved in the dispute can read everything written here.

That said, if your forklift operator job requires driving and your license is restricted in a way that prevents you from driving, I don't see how your employer can allow you to drive. But if the operators work in teams, then perhaps another member of the team could drive while you perform other functions.

Another possibility is for you to go on SDI until the medication has stabilized your seizures. A leave of absence can be a reasonable accommodation under the ADA and under California's more employee-friendly law, the Fair Employment and Housing Act.

Note than an employer may not require an employee to have "no restrictions" or "be 100 per cent cured" in order to hold the job. This requirement would prevent anyone with a disability from ever working! However, an employer may limit employment to those who can perform the essential functions (main components) of the job.

Please look at my Avvo guide on the ADA: http://www.avvo.com/pages/show?category_id=6&permalink=disability-discrimination-in-employment. Please look at my Avvo guide to the differences between the ADA and California's more generous FEHA: http://www.avvo.com/legal-guides/ugc/employment-disability-protection-under-californias-fair-employment-and-housing-act-and-federal-ada?published=true.

To find a plaintiffs employment attorney in California, please go to the web site of the California Employment Lawyers Association (CELA). CELA is the largest and most influential bar association in the state for attorneys who represent working people. The web site is www.cela.org. Click on "Find a CELA Member" and you can search by location and practice area. Many CELA attorneys represent clients throughout the state.

You may want to contact the Epilepsy Society. Many of the offices are well-versed in employment matters and often have lists of attorneys to whom they can refer you.

I hope you can resolve your situation and wish you the best.

twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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Posted

Most places of employment that have active forklift operations going on will take the position that your condition is n unacceptable risk not only in terms of driving the equipment, but in terms of safely navigating around it on a constant and recurrent basis. You may need to look more widely in your company for a position that can be proposed as an accommodation or lieu of an accommodation for your present position.

No legal advice here. READ THIS BEFORE you contact me! My responses to questions on Avvo are never intended as legal advice and must not be relied upon as if they were legal advice. I give legal advice ONLY in the course of a formal attorney-client relationship. Exchange of information through Avvo's Questions forum does not establish an attorney-client relationship with me. That relationship is established only by joint execution of a written agreement for legal services. My law firm does not provide free consultations. Please do not call or write to me with a “few questions” that require me to analyze the specific facts of your history and your license application and prescribe for you how to get a State license. Send me an email to schedule a paid Consultation for that kind of information, direction, and assistance. My law firm presently accepts cases involving State and federal licenses and permits; discipline against State and federal licenses; and disciplinary and academic challenges to universities, colleges, boarding schools, and private schools. We take cases of wrongful termination or employment discrimination only if the claims involve peace officers, universities or colleges.

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