As society continues to grow, pun intended, many new injuries and infirmities are entering the realm of “disability” putting employers more at risk at being caught in the crosshairs of the Americans with Disabilities Act (ADA) and comparable state laws (most of which track the original text of the ADA closely).

Some of the extension is due to the number of new and expanded mental infirmities acknowledged in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM–5) , such as, hoarding, cannabis withdrawal, binge-eating disorder, and others (yes, all of these are real). Some of the extension is due to the evolving workplace, technology gains, and employees better understating disability laws, including accommodations for service/compassion animals.

With the continual legal expansion in this area, aside from Michigan and a half-dozen municipalities that prohibit weight discrimination, obesity has always been and continues to be, in and of itself, not a “disability” under the ADA. The issue, however, became more blurred in 2013 when the American Medical Association pronounced obesity to be a disease. Since then courts have not bought into the AMA’s pronouncement and have maintained that obesity, in and of itself, is not a disability. What this means is that, an employer will not have to accommodate the obesity of an employee if obesity is the only issue. The “if” is what presents the continuing legal struggle for employers in that, if an employee suffers other medical or psychological conditions related to or as a result of the non-covered obesity, the employer may have to accommodate.

One obesity-related impairment that is having a moment in the litigation realm is sleep apnea. In fact, recently, three separate disability-related lawsuits have been filed based on employers taking adverse employment actions against employees in part because of the employee’s alleged sleep apnea, which cause employees to basically sleep on the job and, in some case, fall asleep at the wheel, in the cockpit, etc. Well, maybe it’s not that black and white, but the circumstances are not that far off.

By way of background, sleep apnea is a “serious sleep disorder that occurs when a person’s breathing is interrupted during sleep”. The main characteristic of sleep apnea is that an individual stops breathing for 10-30 seconds at a time while sleeping. (Thank you webmd.com). In 2013, a Kentucky Court of Appeals found that while obesity, in and of itself, is not a disability, the related condition of sleep apnea, which the plaintiff suffered from, was a disability. Pennington v. Wagner’s Pharmacy, Inc. Case No. 2012-CA-0005730-MR (Ky. Ct. App. July 12, 2013). “Breathing”, for obvious reasons, is a “major life activity” under the ADA so sleep apnea can qualify as a covered disability for application of the ADA’s discrimination and accommodation provisions.

There are two types of sleep apnea: (1) central sleep apnea; and (2) obstructive sleep apnea (OSA), of which nine out of ten people suffering from sleep apnea have. The most common treatment for sleep apnea is the nighttime use of a continuous positive airway pressure (CPAP) machine, which is a mask that is worn at night to force air into an individual’s airway. The CPAP keeps a person’s airway open while sleeping so the person can reach a deep sleep. While this seems to indicate the condition affects a person’s ability to breathe during sleep, of which sleeping typically is not allowed during work, before avoiding the interactive process altogether, employers should remember that when dealing with an employee with sleep apnea or another sleep disorder, in 2014, a jury awarded a Kansas police officer who suffered from sleep apnea $1 million when he was allegedly fired in violation of the ADA.

In these most recent three cases, a hospital dispatcher, a bus driver, and a potential city garbage collector, were terminated or denied employment for allegedly falling asleep on the job or, in the case of the garbage-collector applicant, for having a history of doing so.

At first glance, this would seem to be a no brainer for the employer, at least in regard to the first two individuals who operate vehicles as a function of their jobs. I do not know many individuals who would want to be driven to the hospital in their time of need by a driver who has the propensity to fall asleep at the wheel or to a destination by a bus driver who has the same propensity and, apparently, their employers do not want the liability either. So what is the issue as it seems to be a clear public safety issue, right?

In fact, this trifecta of lawsuits has come after two significant train crashes linked to engineers who suffered from sleep apnea. One was the 2016 Hoboken, New Jersey crash where one person died. The other was the 2017 Long Island Rail Road incident where over 100 people were injured and the estimated damage reached $5.3 million. These two incidents occurred within just 13 weeks of each other.

Not to mention, in 2008, there was an airline incident where two pilots both fell asleep. While one of the pilots woke up and safely landed the plane, a 2010 incident in which the cockpit recorder picked up the sounds of the captain snoring led to the deaths of 158 people. (See, I wasn’t kidding about the “asleep in the cockpit” thing.)

The issue is that under disability discrimination laws, which include reasonable accommodation requirements, once an employer is on notice that an employee has a disability and might need a reasonable accommodation, the employer is under an obligation to engage the employee (or applicant) in the interactive process to determine if the employee (or applicant) can perform the essential functions of the job with or without a reasonable accommodation. While it seems to be a no brainer that an employee with sleep apnea should not be responsible for attending to the transportation needs of the public, the law still requires the interactive process step be taken to determine if there is a reasonable accommodation that would allow the employee to perform the essential functions of the employee’s job.

As such, when engaging in the interactive process with employees with sleep disorders, including obesity-related ones such as sleep apnea, employers should consider the following:

  1. What limitations is the employee with a sleep disorder experiencing?
  2. How do these limitations affect the employee and the employee’s job performance?
  3. What specific job tasks are problematic as a result of these limitations?
  4. What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?
  5. Has the employee with the sleep disorder been consulted regarding possible accommodations?
  6. Once accommodations are in place, would it be useful to meet with the employee with a sleep disorder to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?
  7. Do supervisory personnel and employees need training regarding sleep disorders?

Accommodation ideas include:

Daytime Sleepiness: ·     Provide a device such as a Doze Alert or other alarms to keep the employee alert

·     Reschedule for longer or shorter, more frequent breaks

·     Provide a shift change for when the employee is most alert

Maintaining Concentration: ·     Provide space enclosures or a private work area or office

·     Increase natural lighting or provide full spectrum lighting

·     Reduce clutter in the employee’s work environment

·     Plan for uninterrupted work time

·     Divide large assignments into smaller tasks and steps

·     Restructure job to include only essential functions

·     Allow the employee to listen to music or white noise with a headset

Memory Deficits: ·     Post instructions with frequently used equipment

·     Allow the employee to tape record verbal instruction or meetings

·     Provide written checklists

·     Allow additional training time

·     Provide written as well as verbal instructions

·     Use notebooks, calendars, or sticky notes to record information for easy retrieval

Attendance Issues: ·     Provide a flexible start time and/or end time

·     Allow the employee to work from home

·     Provide a part time work schedule

·     Provide a shift change

Decreased Stamina: ·     Provide a flexible schedule

·     Allow longer or more frequent work breaks

·     Provide additional time to learn new responsibilities

·     Provide backup coverage for when the employee needs to take breaks

·     Restructure job to include only essential functions

(This information comes from the Job Accommodation Network).

The key for employers is to engage in the interactive process to determine if there is a reasonable accommodation. For accommodation ideas, the Job Accommodation Network is a great starting point.

For more on accommodations in the workplace, please join Jeff Beemer and me on March 27, 2018 from 4:00 – 5:00 p.m. EST for a webinar titled “Can You Accommodate My Tattooed Ferret: Approaching Disability and Religious Accommodations in the Millennial Age” where we will tackle this and other accommodation issues. Register here.

 

About the Author:
Sara H. Jodka (Of Counsel, Columbus), at Dickinson Wright, dedicates her practice to working with employers to anticipate, identify, and resolve labor and employment, data privacy, related compliance issues and litigation risks in today’s ever evolving workplace. Sara devotes a significant part of her practice to proactively counseling employers in litigation prevention and overall compliance with state, federal, and administrative laws and regulations, which includes reviewing and revising employee handbooks and policies; counseling management regarding termination decisions (including large scale layoffs/reductions in force); performing exempt status classification audits; and training employees on key employment policies and issues, including those related to leave, privacy, discrimination, harassment and retaliation, social media, the digital workplace and others. Sara may be reached at sjodka@dickinsonwright.com and you can visit her bio here.