The ADA ‘snooze’ button: You may not be able to accommodate sleep apnea

Many jobs, if not most, require regular attendance. However, some disabilities make it difficult for employees to arrive on time. In those cases, it’s entirely possible that the disability simply can’t be accommodated.

That may be the case with sleep apnea, a night-time breathing disorder, that often leaves employees unable to arrive on time or stay awake for a full work shift.

Recent case: Wonga worked as a telephone sales representative. He was supposed to arrive at work by 8:00 in the morning but was frequently late. After being warned about attendance, he claimed he had sleep apnea.

Before disciplining Wonga, the employer asked him to provide a sleep study so it could determine the extent of his disability and whether accommodations were possible.

Wonga never provided the study and he was terminated.

He sued, alleging failure to accommodate.

The court dismissed his case, noting that for a telephone sales rep, attendance was an essential function. It determined that even if Wonga could show that his condition made him late, no accommodation was possible. (Maqagi v. Horizon Lamps, No. 13-1573, ED PA, 2016)

Final note: Always engage in the interactive accommodations process, even if you are convinced no ADA accommodation is possible. Get the information you need to determine if the employee is really disabled and whether accommodations will help the employee perform the essential job functions. Certainly ask the employee for input, but you don’t necessarily have to approve a requested accommodation if it’s unreasonable or you have another one in mind.