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Re: Americans with disabilities act
I am not an attorney, but I have read a few articles concerning the Americans with Disabilities Act. I began to delve into this when I was diagnosed with OSA myself, and I read some postings from people on this forum who reported difficulties with their employers once they found out they had this impairment. I have not experienced any of these difficulties with my employer, for which I am very grateful, but I think it is important for those of us who have OSA to know what our rights are, and at the same time also realize that we have certain responsibilities to our employers. In other words, our employers can’t discriminate against us because we have Sleep Apnea, but we must also do everything that we can to overcome the affects of this impairment so that we can do what we are paid to do. In my case, the most noticeable affect was the Excessive Daytime Sleepiness (EDS). I did not have anyone approach me on my job and tell me that they have noticed me dozing off on occasion, but I noticed it myself and became concerned that it was going to affect my performance. There are some interesting articles on the Internet concerning the Americans with Disabilities Act (ADA) and persons with sleep disorders. I found the following FAQ article from the Alexander Hamilton Institute by searching for “sleep Apnea” and “employer”: http://www.ahipubs.com/FAQ/discrimination/disability.html Q. One of our delivery employees, who has worked for us for almost 10 years, was recently diagnosed with sleep apnea. His treatment is going well, but if we decided to fire him from his driving job (even if his doctor says it is medically safe), are we obligated to give him another position in the company? Is sleep apnea even covered under the ADA? A. While sleep apnea can be considered a disability under the Americans with Disabilities Act (ADA), it doesn't mean that you can't legally terminate an employee with sleep apnea (or any other disability for that matter), under certain circumstances. For example, in the case of Brohm v. JH Properties, Inc. (D.C. W.KY, No. 3:96CV-151-S, 1996), an anesthesiologist was fired after he was caught sleeping during surgical procedures. A week later, he was diagnosed with sleep apnea and filed a lawsuit under the Americans with Disabilities Act (ADA). The court ruled that he was fired for conduct which endangered his patients and violated the hospital's rules, not because of his disability. According to the court, no employer is required to ignore the dangerous behavior of its employees simply because the employee has a disability. In the case you describe, however, if this employee is fired because of his disability, it may be discriminatory if he is able to fulfill the essential duties of his job. It probably would not be illegal if he couldn't fulfill an essential job function (e.g., drive) or if your company has a reasonable belief that he would pose a danger to himself or to others. Under the ADA, reasonable accommodation may include reassigning a current employee to a vacant position for which the individual is qualified, if the person is unable to perform the original job because of a disability, even with an accommodation. However, employers are not obligated to transfer a person who is not qualified for the position, nor are they required to create a position to which it could transfer the employee. Finally, employers are not required to make an accommodation if it would impose an undue hardship on the operation of the employer's business. Since this employee's doctor says he is medically safe to drive, and you know that the employee is responding well to treatment, you could have trouble proving you had a reasonable belief that he would pose a danger to himself or others if you do decide to terminate. Here's a suggestion: Ask the employee if he feels comfortable driving. If he doesn't, perhaps the two of you can come up with a reasonable accommodation which would be beneficial to everyone.
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