An ADAAA “rule of construction” is that an episodic impairment is a disability if it would substantially limit a major life activity when active. A Missouri federal district court has held that whether an employee with an episodic impairment is a qualified individual with a disability is also determined when the impairment is active.  The court held that a mammography technician who had fourteen epileptic seizures in two years was not a qualified individual with a disability “because she could not perform the essential functions of her position while she was experiencing an uncontrolled and unpredictable seizure.”  Olsen v. Capital Region Med. Ctr. (W.D. Mo. April 12, 2012).

The court also held the plaintiff was not qualified because she posed a direct threat of harm to herself and others.  A “direct threat” exists when there is a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. During seizures, the plaintiff suffered numerous injuries to herself, including cuts and abrasions, bites to her tongue and cheek and, on one occasion, an interruption of her breathing. She would lose consciousness for several minutes during a seizure.

Twice she had a seizure while conducting mammogram examinations on patients. “[I]t is not hard to imagine what harm a patient could potentially suffer if the mammography machine was in full compression and plaintiff experienced a seizure or if plaintiff were to fall on a patient while she was positioning [her] in the machine,” the court said.

In granting summary judgment to the employer on plaintiff’s disability discrimination claims, the court concluded that the defendant’s actions were not motivated by discrimination based on plaintiff’s disability but “were in response to the unpredictable and severe consequences caused by plaintiff’s seizures.”