Labor / Employment, On The Job

Shocking! Fired For Sleeping On The Job -- And Awarded Damages!

Believe it or not, there are reasonable accommodations in the workplace that can -- and must -- be made under the ADA for sleep apnea.

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“You snooze, you lose — you sue.”

Huh? What does that mean?

This was the lead-in to a recent article in the paper-of-record New York Post about three sufferers of sleep apnea.

It turns out that the article — meant to be snarky — addressed a serious issue.  It was about three overweight people — one a hospital dispatcher, the second a bus driver, and the third a “would-be city garbage man,” who were fired (or not hired) allegedly because they fell asleep (or had a history of doing so) on the job.

And are now suing!  (Would you want to ride with that bus driver?)

Get beyond the snarky tenor of the article and note that the three plaintiffs are sufferers of a serious condition known as sleep apnea, of which obesity is a major cause. All three claim that sleep apnea causes them to fall asleep on the job.

Sleep apnea is also a potentially fatal condition — and not just for the sufferer:  “These [three] lawsuits came after two big train crashes connected to engineers suffering from sleep apnea. One of these accidents was the Hoboken collision in 2016 which resulted in one death and the other was the Long Island Rail Road incident which resulted in more than 100 injuries in 2017.”

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Moreover, the Federal Aviation Administration (“FAA”) has warned pilots about sleep apnea, which it said, “can lead to pilot exhaustion with potentially deadly consequences.”  Indeed, in 2008, “a commercial flight with 40 passengers flew by its destination after the two pilots on the aircraft both fell sound asleep. The pilot, who had sleep apnea, awoke and safely landed the plane.”  But “[t]he voice cockpit recorder of a 2010 Air India flight picked up the sounds of the captain’s loud snoring shortly before the aircraft crashed, killing 158 people.”

Yikes!!  A pilot who falls asleep!

So upon what grounds can these three new plaintiffs possibly sue?

Answer: alleged violations of the Americans With Disabilities Act (“ADA”).  Although I have not seen the complaints, plaintiffs presumably contend that sleep apnea is a disability covered by the ADA, and perhaps also that their obesity is a covered condition under the ADA since it causes or exacerbates the sleep apnea.

What Is Sleep Apnea? Is It A Disability Under The ADA?

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Briefly put, a “disability” under the ADA is a physical or mental impairment that substantially limits one or more major life activities, a record of such an impairment, or being regarded as having an impairment.

And sleep apnea?

The Mayo Clinic’s website defines sleep apnea as “a potentially serious sleep disorder in which breathing repeatedly stops and starts. You may have sleep apnea if you snore loudly, and you feel tired even after a full night’s sleep.”  One result: Excessive daytime sleepiness.  Untreated, it can cause hypertension, stroke, or heart failure. And over 12 million Americans suffer from it.

This is serious stuff, despite the snark.

If a “disability” under the ADA is a physical or mental impairment that substantially limits one or more major life activities, what “major life activity” does sleep apnea impair?

In 2013, the Kentucky Court of Appeals held that while “morbid obesity” in and of itself (without more) is not a disability, the plaintiff in that case “suffers from sleep apnea, a condition causing difficulty in breathing during sleep. There is no dispute that breathing is a major life activity.”

Yep — I think we can all agree that breathing is a major life activity. (Isn’t sleeping also a major life activity?)

Is sleep apnea like narcolepsy?  Not the same thing. “Narcolepsy is a chronic neurological disorder that affects the brain’s ability to control sleep-wake cycles.”  The primary symptom is “persistent sleepiness,” but quite the opposite from sleep apnea, this sleepiness persists “regardless of how much sleep an individual gets at night.”  But the end result can be the same: falling asleep on the job

And in 2014, a jury awarded $1 million to a Kansas police officer who suffered from sleep apnea and was allegedly fired in violation of the ADA.

A little more than a year ago, an Austin-based detective with narcolepsy was awarded more than $240,000 by a jury in an ADA “failure to accommodate” case.  Her lawyer said: “Individuals who have disabilities like narcolepsy that are widely misunderstood by the public and not physically apparent seem to bear a disproportionate share of that discrimination.  Disability discrimination laws do not exempt narcolepsy or other sleep disorder [disabilities] from protection.”

I think it is safe to say that sleep apnea is a covered disability.

What About Obesity?

Obesity is a major risk factor for sleep apnea, although not everyone who has sleep apnea is overweight.  So if there is no such thing as suing for weight bias, and obesity is not covered by the ADA, what role, if any, does weight play in these three new cases?  I wrote here that “[l]ast time I checked, Michigan was the only state that prohibits weight discrimination in employment (as do a half-dozen or so municipalities).”

I noted that “mere obesity is not considered a disability without more — for example, if a medical condition such as hypertension or diabetes is caused or exacerbated by obesity, the obesity may be a disabling condition.”  And sleep apnea is, indeed, caused or exacerbated by obesity.  So it is plausible that our three new plaintiffs indeed claim that both their sleep apnea and obesity are covered by the ADA.

Takeaway

Anyway, the good news for sufferers (and the rest of us) is that sleep apnea can be treated quite successfully with medical care and with gadgets such as a CPAP machine (look it up). And there are reasonable accommodations in the workplace that can — and must — be made under the ADA.

Finally, for those who fear flying with a pilot who can drop off suddenly, the FAA has noted that “pilots with sleep apnea can keep their FAA medical certificates and keep flying with medical care.”

Whew… I guess.

richard-b-cohenRichard B. Cohen has litigated and arbitrated complex business and employment disputes for almost 40 years, and is a partner in the NYC office of the national “cloud” law firm FisherBroyles. He is the creator and author of his firm’s Employment Discrimination blog, and received an award from the American Bar Association for his blog posts. You can reach him at Richard.Cohen@fisherbroyles.com and follow him on Twitter at @richard09535496.

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