Sleep apnea: ADA protected?
September 6, 2012
Article courtesy of SBAM Approved Partner ASE
By Anthony Kaylin
In May 2007, David Feldman was working as a tractor operator on the day shift at a manufacturing facility then owned by Olin Corporation (Olin). Because of Feldman’s medical problems with fibromyalgia and sleep apnea, his doctors had advised him to work regular day positions, without rotation and overtime.
Everything went well until Olin eliminated the position. The company then offered Feldman a rotating shift position that required him to work day, afternoon, and evening shifts, plus overtime. However, Feldman’s doctor wrote a note indicating restrictions against any shift but the day shift and no overtime.
David was laid off. Olin did not place him in a different position, because Olin stated no other positions were available that did not require overtime or flextime. But seven months later, a day shift spot finally opened up and he was rehired. So was Feldman happy to be back at work?
Yes and no. Feldman filed a lawsuit alleging that the Olin’s failure to offer a reasonable accommodation in the form of a straight-day shift, without overtime, violated the Americans with Disabilities Act (ADA). And as an aside, Feldman is still working at Olin.
At the trial court, Olin filed for summary judgment and won. Feldman argued that Olin should have made a reasonable accommodation by offering him an available position after he alerted the company to his flex-time and overtime restrictions. The Trial Court ruled that Olin did not have to do so because Feldman did not have a qualified disability. However, on appeal the 7th Circuit Court of Appeals sent the case back to the trial court for trial.
Under 7th Circuit case law, to succeed on a claim under the ADA, a plaintiff must show: 1) that s/he is disabled; 2) that s/he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) that the employer took an adverse job action against him/her because of the disability or failed to make a reasonable accommodation.
The 7th Circuit stated that in order to have a disability under the ADA, the employee must show that s/he (1) has an actual disability that substantially limits one or more major life activities, (2) has a “record of” such an impairment, or (3) his employer regards him as having such an impairment. Feldman argued that he is disabled because of substantial limitations in his ability to sleep, a major life activity. To show that sleeping is affected by a disability, the proponent must show that the limitations on sleeping are sufficiently prolonged, severe and long-term. David had the doctor’s notes and a sleep study that reflected his impairment. The 7th Circuit ruled that Feldman had a material issue in fact on this specific point that a jury should review and decide.
However, just because there was a material dispute in the facts of whether there is a disability, Feldman must also show that he is qualified with or without the disability to do the job. Olin argued that Feldman cannot meet this requirement because overtime and rotating shifts—exactly the job demands from which Feldman needed to be excused—are “essential functions” of the job.
Although the ADA provides that consideration should be given to the employer’s judgment as to what functions of a job are essential, and if an employer has prepared a written description before advertising or interviewing applicants for the job, this description shall be considered evidence of the essential functions of the job. In addition, the ADA allows other factors to be considered, including (1) the amount of time spent on the job performing the function, (2) the consequences of not requiring the incumbent to perform the function, (3) the terms of the collective bargaining agreement, (4) the work experience of past incumbents in the job, and (5) the current work experience of incumbents in similar jobs. The 7th Circuit held that both sides presented evidence that muddies the waters; therefore a jury should decide.
As for the third part of the discrimination test, both sides agree that no reasonable accommodations were made. The fact that Feldman is still working with Olin does not mitigate the claims. The case was sent back to the Trial Court for trial.
Takeaway for employers: Under the current amendments of the ADA, almost all conditions will be considered a disability. Therefore, it is important that a) a job description be properly written to identify the essential functions of the job, b) actual work practices not contradict the job description, and c) the employer review potential reasonable accommodations, if any, and engage in interactive dialogue with the employee and document it. Additionally, if the person bringing the complaint is still working for the employer, the latter must not allow retaliation against him or her.