Help with Employers - Is my Apnea a Disability? - ADA

[Somnambulist]

There seems to be a key difference between the ADA and FMLA.

Under the ADA, a person must be a "qualified individual with a disability". The ADA defines a qualified individual with a disability as:

"...a person who meets legitimate skill, experience, education, or other requirements of an employment position that s/he holds or seeks, and who can perform the essential functions of the position with or without reasonable accommodation." - (Source)

Under the FMLA, an eligible employee must meet the "leave requirements":

"Subject to section 103, an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for one or more of the following:...

...(D) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee." - Source

Please keep in mind that this is a simple reading of the text. The courts interpret, (and re-interpret), the text and how it applies on a regular basis. An example of this would be the post I made earlier where "mitigation" was not considered in years past, but now is a factor due to recent court rulings.

I have found the FMLA to be more liberal in my particular case. I have no need for "accommodation". I have missed work in the past due to my "serious medical condition", and the FMLA has protected me from my employers strict sick leave policy, (almost identical to what WilsonVilleUSA described).

Fortunately for me, BiPAP made a difference, and recent contract changes at work have relaxed the sick leave policy quite a bit.

I would strongly recommend seeking legal advice before invoking the ADA. It is possible to "accommodate" yourself right out of a job.

[lawdognellie]

Sorry it took so long for me to add to this post. I actially am a 3rd year law student who intends to practice disability law.

Frst of all, FMLA, disability benefits (e.g. SSI) and ADA all have different definitions of a disability.

- ADA requires a person to be substantially limited in a major life activity. However, about a year ago there was a court decision (not the U.S. Supreme Court) basically stating that sleeping is not a major life activity. If other courts follow this lead then OSA is not a disability under the ADA. Asthma can be a disability because it can substantially limit a person's ability to do things like walk. Please note that the diagnosis is not what makes a person disabled, but the actual functional limitations, which is decided on a case by case basis.

- FMLA does not require a person to have a disabilty, but rather a "serious medical condition." (Note: can also use FMLA to take care of a family member's serious medical condition, for pregnancy, or for bonding with baby). If a person qualifies for FMLA (CFRA if CA), they are entitled to up to 12 weeks off a year. However, certain conditions must me satisfied for FMLA to kick in. First, you must have worked at your job for at least 1 year (and at least 1280 hours/year). Your employer also must employ at least 50 employees within a 75 mile radius from your location (e.g. if you work for Hilton, can only count the employees within 50 miles from the site you work at). A serious medical condition is something that put you in the hospital or requires ongoing medical supervision. FMLA is great if you need to take time off for doctor's apointments, since work has to let you and cannot fire you. Allso if you're taking time off for yourself, your employer has the right to request information on your serious medical condition.

-SSI/Medicare/Medicaid have a totally different definition of a disbailty, which is really complicated. I won't go into it b/c it's really odd.

Okay, hope this helps. If anyone has questions, feel free to send me an e-mail.

Sarah

[wabmorgan]

How in hell can sleeping not be considered "major life activity"?

I can only hope they are appealing the decision.


Just goes to show how true something my Dad said to me several years ago is.

Police don't know the law. Lawyers don't know the law. The judges are the only ones that know the law and they only half way know it.

[Artwood]

I don't want a disability check--I'd just like to be able to work from 10:30AM to 7:00PM instead of 2:30PM to 11:00PM.

My doctor wrote me a note to give to my employer that stated that it would be better for my sleep if my shift was changed.

What do I need to do to MAKE it happen? My employer likes me working to 11:00PM because I WORK and since I do so much work they're able to pay FEWER employees.

They haven't had a problem letting other people change shifts for every reason under the sun.

Legally could I FORCE them to change my shift to accomodate my sleep apnea? My sleep doctor is a big believer in circadian rhtyms.

I'm also a diabetic--would that help my case any?

[Somnambulist]

Hi Sarah.

Thank you for your input on this. I'm a bit confused about the following statement:

Allso if you're taking time off for yourself, your employer has the right to request information on your serious medical condition.

As I understand it, once a need for FMLA leave is discovered, and the Entitlement to Leave has been established, then the employee is required to submit Certification to the employer.

Sufficient certification can be in the form of the DOL's Form WH-380.

Looking at this form, it seems that no request/demand for a specific diagnosis is made.

"(b) Form WH-380, as revised, or another form containing the same
basic information, may be used by the employer; however, no additional
information may be required." - (Source)

Further:

"(a) If an employee submits a complete certification signed by the
health care provider, the employer may not request additional
information from the employee's health care provider. However, a health
care provider representing the employer may contact the employee's
health care provider, with the employee's permission, for purposes of clarification and authenticity of the medical certification." - (Source)

There are measures the employer can take if they questions the adequacy of a medical certification..

Again, I have no legal training and this is just a simple reading of the text. Am I reading this wrong? Or have there been recent cases that have changed how these sections are now interpreted?

In my case, my employer wanted more info than was offered on the WHD-380, but backed off when confronted with these sections.

I'd be interested to know if Imay be reading this all wrong.

Thanks again for your input.

Mike

[Guest]

It has been a while since I searched it, but Cornell law school used to have a good search feature for people to actually look up and read/print federal case law. You may be able to do a search through that cite with just ADA, however, it may turn up too many cases.

The other place to look if you are really interested in specific case law is in your local courthouse law library or a public university's law library (go to words and phrases or ALR or CJS or AmJur and look up ADA in the index, I imagine it will be pretty expansive and may even have specific conditions/disabilities listed in the index. Also, these resources generally will provide summaries of the cases on particular issues. The controlling law in your particular jurisdiction could differ from what is reported in the treatise, but they ususally have case law from all the jurisdictions in the footnotes).

TM

[Justin_Case]

The original link posted is DEAD.

[Guest]

I have dealt with the ADA, etc. many times in my carrer and continue to do so. As a manager for a major employer I can tell you that I am very skeptical of many of the attempts I see. We follow the letter of the law, requiring all documentation. Also, our disability insurance requires various stages once short and long term disability starts. I have had cases where an employee attempted to use the ADA, etc. claiming a disability. However, they did not want to seek treatment. I do have sleep apnea and am successfully treating it with an APAP and have been for four years. I have never rasied the issue with my employer because I am treating it, so no special acommodations are required. As for special acommodations when traveling I really think that would be a bit of a stretch, as I really don;t see using a CPAP as requiring that an employer bend the rules for special acommodations (such as a single room). As patients suffering from sleep apnea we have a very treatable medical condition. Anyone claiming to have something beyond that is, in my opionion, not wanting to accept responsibility. Yes, my company gets challeneged regularly regarding the ADA and we (and me) have not lost yet. As one of the examples used noted, it is up to the employer to make acommodations, but the requirement is reasonable acommodations to allow the employee to do their job. Also, just as an FYI, if you do use the FMLA the employer is not always required to hold the same position open for you. Don't practice law when you know nothing about it. I have dealt with enough expert "lawyers" that read something on the internet or hear it in a bar to know that the advice is worth what you paid for it - nothing. Our attorneys love to deal with those kinds of people when they come in with the free facts they learned about their "rights".

[Justin_Case]

The keypoint to remember is if the employee is treating his/her apnea and if treatment is successful.

For many, they may not be achieving satisfactory results with treatment, which in turn leads to the all the common issues with sleep apnea: poor concentration, forgetfullness, inability to focus, especially when under stress. Some employers like to dump on their employees and expect them to do more than 100% of the typical workload when there is a staff shortage. They often bring in younger asian workers who will not say a word yet will work like machines, beyond what's been the norm.

I have heard management say "if these younger employees can process X transacations and you can only process Y transactions, then there is a peformance issue". All the time being, these younger employees are setting the bar higher then before and the manager gets a bonus because there is less staff doing more.

This is how or why employees may have to resort to being accomodated because of their sleep apnea.

[Catnapper]

I think if the employer said something about the younger employees could do more it possibly could be age discrimination. Does anyone know about that for sure?

Catnapper

[Guest]

I think if the employer said something about the younger employees could do more it possibly could be age discrimination. Does anyone know about that for sure?

Even if it is, it will be difficult to prove unless there are witnesses. The employer could easily deny saying anything about age.

[Patrick A]

does this mean that I can also add this to my disabilities?
I am already on Disability

[mattman]

I would hope nobody would ever consider me as being "disabled" just because I have sleep apnea.

I am treating it - so I no longer have a problem.

mattman

[blarg]

They often bring in younger asian workers who will not say a word yet will work like machines, beyond what's been the norm.

Ok, WOAH. Let's leave racial stereotypes out of this if we can.

I currently plan to do absolutely nothing with my diagnosis but accept treatment. I won't be bringing it up at job interviews, talking to lawyers about it, etc.

I think requesting accommodation is a bit much if you're getting treated successfully. If your room buddies can't accept a machine that makes you stop snoring, then I have very little sympathy for them. I could see requesting a schedule change to a more natural circadian rhythm, but personally I wouldn't want the political implications of the request unless they truly gave me a bad schedule.

[OldHippie]

Texas is an "at will" state. An employer can fire you for any or NO reason at all.

I have Lupus, Grave's Disease, Hashimoto's Disease and arthritis as well as Sleep Apnea. I don't want to give them any more reason to get rid of me.

However, the information is GREAT "just in case".

Louise