Employers striving for a diverse workforce take care not to discriminate against employees with a disability, but hidden disabilities can be tricky. Supervisors might think they’re dealing with performance problems when they really should be considering whether an employee has a disability protected by the Americans with Disabilities Act (ADA).
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Sleep deprivation—which the U.S. Centers for Disease Control and Prevention (CDC) deems a public health problem—can pose such a dilemma. Workers in every field can suffer from a lack of sleep for any number of reasons, but shift workers are particularly susceptible. The summary of a study the CDC published in March 2017 says the duration and quality of sleep has “a direct effect on worker health and safety.”
The study notes that certain fields are more likely to employ shift workers—namely production, health care, protective service, transportation and material moving, and food preparation and serving. The CDC report summary also notes that production and transportation and material moving occupations are associated with a higher likelihood of what is referred to as short sleep duration, i.e., less than seven hours per day.
Substantially limiting?
With so many workers potentially suffering from a lack of sleep, employers need to be aware of what they’re dealing with. Since the language of the ADA promises protection for employees with physical or mental impairments that substantially limit a major life activity, employers need to understand when or if sleep deprivation can trigger protection under the ADA.
“Being sleep deprived, in and of itself, would not be an ADA-covered disability,” Jonathan R. Mook, an attorney with DiMuroGinsberg, PC, in Alexandria, Virginia, says. “However, if the sleep deprivation is caused by an underlying physical or mental impairment, such as sleep apnea, then the impairment may rise to the level of a disability, depending upon whether or not it substantially limits a major life activity.”
Mook also explains that the ADA Amendments Act of 2008 (ADAAA) defines major life activities as including sleeping, “so the issue will be to what degree is the person’s ability to sleep substantially limited.” The substantially limited requirement is relatively easy to meet under the ADAA, he says. “Basically, the person would need to be limited in his or her ability to sleep compared to most people.”
But even with the lessened standards brought on by the ADAAA, “merely being sleep deprived because one goes to bed late and gets up early would not rise to the level of a disabling condition,” Mook says.
Getting information
So how should an employer handle an employee who is sleep deprived? “If an employee is habitually late to work or nods off during the day, an employer should not ask the employee whether or not the employee has sleep apnea or any other medical condition,” Mook says. “Rather, the employer should focus on the job performance issue.”
But if an employee informs an employer that he or she suffers from sleep apnea, Mook says the employer can seek documentation as to the nature of the condition and its impact on the individual. With the proper medical information and in consultation with a medical consultant, the employer can then explore whether the employee’s condition meets the standards of an ADA disability.
“If it does, then the employer should consider whether the individual’s sleep difficulties can be accommodated in order to allow the person to perform the essential functions of the job,” Mook says.
Accommodating sleep deprivation
Accommodating an employee doesn’t mean putting up with performance problems, but employers are advised to think twice before disciplining an employee claiming a medical problem.
“The courts have recognized that an employer need not tolerate sleeping on the job, but before an employer disciplines someone who claims a medical problem related to sleep, the employer should consider various reasonable accommodations,” Mook says. For example, the ADA recognizes that an alternative work schedule possibly can be a reasonable accommodation.
Maybe such an accommodation can allow for an employee coming in later or leaving earlier. Possibly even “allowing an employee to take a siesta at lunchtime could be an appropriate accommodation, depending upon the situation,” Mook says. “Importantly, an employer does not need to pay an employee for the time that an employee is not working, either because the employee comes to work later, leaves earlier, or takes a nap at lunchtime.”
Sometimes it can be to an employer’s advantage to accommodate an employee with sleep trouble even if the condition doesn’t qualify as a disability under the law. “I usually advise employers that if they can easily accommodate an employee’s medical condition, simply do so as long as the accommodation being provided would not set a precedent for other employees,” Mook says. “Employers want an employee to do the job and if a minor accommodation will allow the employee to do so, it usually is most efficient just to provide the accommodation and not go through a full-blown ADA analysis.”
Consider liability
Employers also need to consider the liability they face if an accident at work is attributed to an employee’s sleep deprivation. “Obviously in safety-sensitive positions, sleep deprivation may cause accidents which could impose liability on the employer in the form of workers’ compensation claims or, potentially, negligence claims by third parties injured as a result of the accident,” Mook says.
Employers need to carefully consider whether employees with sleep disorders who work in safety-sensitive positions have the ability to safely perform the job even with an appropriate accommodation. “If not, then the employee would not be qualified for that position,” Mook says. “In that case, a possible accommodation would be to transfer the employee to a vacant position that the employee can perform and, if that is not possible, possibly terminating the employee.”
Before terminating, though, Mook stresses that the employer should make sure it has exhausted all feasible accommodations to maintain the employee’s employment.
It’s a good article. I would emphasize even more that no disability means the employee doesn’t have to perform the essential functions of the job. I would also emphasize the safety aspects even more. For example, there are entire categories of jobs, such as airplane pilots, locomotive engineers, truck drivers, law enforcement officers, construction workers, loggers, and operating engineers, where being awake and alert at all times when on the job are essential functions.