Article

Sleep Apnea and Narcolepsy at Work: Your ADA and FMLA Rights

How the ADA and FMLA protect workers with obstructive sleep apnea, narcolepsy, and other sleep disorders, including coverage based on sleeping, breathing, and neurological and respiratory functions, why CPAP and medication do not erase coverage, schedule, break, and shift accommodations, safety fears and the direct threat standard, documentation and medical questions, FMLA leave, retaliation, and deadlines.

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How Sleep Apnea and Narcolepsy Can Qualify as a Disability

Title I of the Americans with Disabilities Act applies to private employers with 15 or more employees for 20 or more weeks in the current or preceding calendar year and to state and local government employers; federal workers are covered through the Rehabilitation Act, and many state laws reach smaller employers. MedlinePlus describes sleep apnea as a common disorder that causes breathing to stop or get very shallow during sleep, with obstructive sleep apnea, in which the airway collapses or becomes blocked, as the most common type, and it describes narcolepsy as a nervous system problem that causes extreme sleepiness and attacks of daytime sleep. Under 42 U.S.C. Section 12102 and 29 CFR 1630.2(i), major life activities expressly include sleeping, breathing, concentrating, thinking, and working, as well as the operation of major bodily functions, including neurological, brain, and respiratory functions. Coverage is still decided individually rather than by diagnosis alone, but the ADA's definition of disability is meant to be construed broadly, and a person with a record of such an impairment or who is regarded as having one can also be protected under 29 CFR 1630.2(k) and (l).

Why CPAP, Medication, and Treatment Do Not Erase Coverage

MedlinePlus says continuous positive airway pressure devices work well to treat obstructive sleep apnea in most people, that dental devices may help some people, and that surgery may be an option; it says there is no cure for narcolepsy, which is a lifelong condition, but that treatment such as stimulant medicines and other drugs can help control symptoms. Under 42 U.S.C. Section 12102(4)(E) and 29 CFR 1630.2(j)(1)(vi) and (j)(5), whether an impairment substantially limits a major life activity is judged without regard to the helpful effects of mitigating measures such as medication, medical equipment, and other treatment, so an employer cannot deny coverage simply because a CPAP machine or medicine is working. Under 29 CFR 1630.2(j)(4)(ii), the negative side effects of medication or the burdens of following a treatment regimen may be considered, and under 1630.2(j)(1)(vii), an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active. A person covered only because the employer regards them as impaired is not entitled to reasonable accommodation under 1630.2(o)(4).

Schedule, Break, and Shift Accommodations

MedlinePlus says people with sleep apnea may wake up unrefreshed, feel sleepy throughout the day, be forgetful, and fall asleep while working, and it says people with narcolepsy can have sleep attacks they cannot control and cataplexy, a sudden loss of muscle control often triggered by strong emotions. For narcolepsy, MedlinePlus suggests going to bed and waking up at the same time every day and planning naps during the day when you typically feel tired, which it says helps control daytime sleepiness and reduces unplanned sleep attacks. Under 42 U.S.C. Section 12111(9), reasonable accommodation may include job restructuring, part-time or modified work schedules, and reassignment to a vacant position, and the EEOC says a modified schedule may involve adjusting arrival or departure times, providing periodic breaks, and altering when certain functions are performed, even if the employer does not provide such schedules for other employees. Depending on your symptoms, requests might include short scheduled breaks for a planned nap, a consistent daytime shift instead of rotating or overnight shifts, a later start time while treatment is adjusted, or moving tasks such as driving to a coworker, as long as the change does not cause undue hardship, which 29 CFR 1630.2(p) defines as significant difficulty or expense. If more than one accommodation would work, the EEOC says your preference should be given primary consideration, but the employer has the ultimate discretion to choose among effective options, and it is not required to eliminate an essential function of the job.

Safety Concerns and the Direct Threat Standard

MedlinePlus says daytime sleepiness from sleep apnea can increase the risk of motor vehicle and industrial accidents and that narcolepsy may be dangerous if episodes occur while driving or operating machinery, and it notes that people with narcolepsy may have driving restrictions that vary from state to state. An employer may raise safety, but under 29 CFR 1630.2(r) a direct threat means a significant risk of substantial harm that cannot be eliminated or reduced by reasonable accommodation, and the decision must rest on an individualized assessment of your present ability to safely perform the essential functions of the job, using reasonable medical judgment based on the most current medical knowledge or the best available objective evidence, and considering the duration, nature and severity, likelihood, and imminence of the potential harm. A diagnosis alone, loud snoring, or a general fear about sleep disorders is not that assessment. If your job involves commercial driving or another federally regulated safety role, 29 CFR 1630.15(e) says it may be a defense that an action is required or necessitated by another federal law or regulation, so those separate medical rules can matter.

Documentation and Medical Questions

MedlinePlus says a sleep study is needed to confirm obstructive sleep apnea and can be done at home or in a sleep lab, and that narcolepsy testing may include a sleep study and a multiple sleep latency test measuring how quickly you fall asleep during a daytime nap. When you request an accommodation and the need is not obvious, an employer may ask for reasonable documentation about the disability and the functional limitations that make the accommodation necessary, so a note from your provider describing what is affected, such as staying alert on overnight shifts or needing a short scheduled nap, is usually more useful than a diagnosis alone. Under 42 U.S.C. Section 12112(d)(4)(A), an employer may not require a medical examination of a current employee or ask whether the employee is an individual with a disability or about the nature or severity of the disability unless the examination or inquiry is job-related and consistent with business necessity. Under Section 12112(d)(3) and (4), medical information the employer obtains must be kept on separate forms, in separate medical files, and treated as confidential, with limited exceptions such as informing supervisors about necessary work restrictions and accommodations.

Leave and FMLA for Sleep Disorders

The EEOC's reasonable accommodation guidance says permitting accrued paid leave or unpaid leave is a form of reasonable accommodation when needed because of a disability, including for obtaining medical treatment and recuperating from an illness, which can cover time for sleep studies, device fittings, or recovery from airway surgery. Under the Family and Medical Leave Act, 29 CFR 825.113 defines a serious health condition as an illness, injury, impairment, or physical or mental condition that involves inpatient care or continuing treatment by a health care provider. Under 29 CFR 825.115(c), continuing treatment includes a chronic condition that requires periodic visits for treatment at least twice a year, continues over an extended period, and may cause episodic rather than continuing incapacity. Under 29 CFR 825.202, FMLA leave may be taken intermittently or on a reduced leave schedule when medically necessary for planned or unanticipated medical treatment or for recovery. Under 29 CFR 825.110, an eligible employee has worked for the employer for at least 12 months, has at least 1,250 hours of service in the 12 months before leave starts, and works at a location where the employer has at least 50 employees within 75 miles.

Retaliation and Deadlines

Under 42 U.S.C. Section 12203, an employer may not retaliate against you for opposing disability discrimination or taking part in an ADA charge or investigation, or coerce, intimidate, threaten, or interfere with you for exercising ADA rights. Keep a written record of each accommodation or leave request, every response, and any discipline for falling asleep, attendance points, removal from a shift or route, or termination that follows, including dates and the names of the people involved. A charge with the EEOC generally must be filed within 180 calendar days of the discriminatory act, extended to 300 days where a state or local agency enforces a law prohibiting the same kind of discrimination; federal employees generally must contact an agency EEO counselor within 45 days.

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