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[News] Self Described "Happy Drunk" With Sleep Apnea Was Not Disabled: Adjudicator
#1
Canada: Self Described "Happy Drunk" With Sleep Apnea Was Not Disabled: Adjudicator

by Adrian Miedema

"Not every ailment amounts to a disability", an adjudicator has held, in dismissing an employee's grievance. Employers who often wonder what types of ailments or conditions amount to "disabilities" will find this decision interesting.

The employee had an erratic attendance record. The employer imposed reporting requirements on the employee as to when and how he must report to his supervisor if unable to arrive at work at all or on time. The employee breached those conditions and was disciplined. The employee then filed grievances challenging the discipline and alleging that the conditions were unfair, constituted harassment, and failed to take into account his sleep apnea and drinking problem.

The adjudicator held that the employer, faced with the employee's poor attendance record, which was a departure from the norm, was entitled to impose the reporting requirements.

The adjudicator went on to state that the employee's sleep apnea and drinking patterns did not amount to a disability. The adjudicator's comments are interesting:

"130 The difficulty is that the grievor's argument confuses an ailment with a disability. Depression and stress are commonly experienced by many people in the course of their working lives. Neither is, by that fact, disabling. The same can be said of sleep apnea. The fact that one experiences such conditions does not establish a prima facie case of disablement or, all the more so, a prima facie case of discrimination based on a disability. Needed in this case was evidence that the conditions were so bad that they disabled or at least limited the grievor's ability to comply with the reporting conditions. But the grievor offered no such evidence other than the conditions themselves.

"131 The importance of managing attendance is not eliminated by the mere assertion that one has an illness. Not every physical or emotional ailment amounts to a disability requiring accommodation. Some ailments – such as depression, emotional stress or headaches or, in Mr. Riche's case, sleep apnea – may impact a person's life without necessarily making it impossible for them to comply with the usual expectations of working life. For example, depression may be mild, moderate or totally disabling. The severity of its impact will depend upon the severity of the cause, the person's psychological makeup and the steps he or she takes to combat it. It is not a sufficient excuse on the part of an employee to justify his or her repeated tardiness or frequent absences by saying, "I'm depressed", or, "I had a headache." Something more is required to enable the employer to know that the ailment is truly disabling, that is, something beyond the control of the employee as opposed to simply an excuse. In part, that is the reason the jurisprudence emphasizes the obligation on the part of the employee seeking accommodation to explain the nature of the problem and to co-operate in its treatment. Without such an explanation, the employer has no way of knowing whether the ailment is severe enough to amount to a disability or what to do about it by way of an accommodation if so required."

The adjudicator went on to state that employers are not required to accommodate "issues that an employee is able to control". Here, the adjudicator held that the employee was able to control his problem with sleeping in – for instance, by putting his alarm clock on the other side of the room. Also, the grievor's statements that he was a "heavy drinker" and a "happy drunk" were not enough to establish that he was an alcoholic, particularly when he stopped short of calling himself an alcoholic and did not call evidence from his family doctor.

As this case demonstrates, not every health condition will be a disability, and the mere assertion by an employee that he has a health issue may not be enough , in every case, to require the employer to accommodate.

Fair Use From:
http://www.mondaq.com/canada/x/239012/He...djudicator
The above post may contain copyrighted material the use of which has not always been specifically authorized by the copyright owner. The material available is intended to advance the understanding of Sleep Apnea treatment and to advance the educational level of Sleep Apnea patients with regard to their health. Sometimes included is the full text of articles and documents rather than a simple link because outside links frequently "go bad" or change over time. This constitutes a "fair use" of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material in this post is distributed without fee or payment of any kind for research and educational purposes. If you wish to use copyrighted material from this post for purposes of your own that go beyond "fair use", you must obtain permission from the copyright owner.
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#2
I agree with the judge/adjudicator.

In the US, employment discrimination due to disability is based on a lot of factors. Add in that a person may be considered disabled by one agency but not another, and it is a difficult thing to determine. I would assume Canada is very similar.

This guy has alcoholism and sleep apnea. Not two thing to mix together. The article doesn't say if he was using a CPAP or if he was compliant with it. We are only told it takes him a while to wake up. And he had a problem with alcohol. We aren't told if he was doing anything for that, either.

What the judge was saying is there are things anyone can do to assist themselves and their employer. Hard to wake up? Go to bed earlier and get up earlier, giving you more time to get your act together. Like he said, put the alarm clock across the room so you have to get up to turn it off. Request if you can come in later.

But it sounds as if this guy didn't announce his sleep apnea until he was "disciplined". Mighty convenient.

Unless a person has such a big problem with their sleep apnea that the CPAP is not working well enough, I don't see how it could be considered a disability "big enough" to warrant protection under the law. The ADA defines a disability as having impacted one or more daily life activities. The only activity this guy seems to have problems with is waking up. Once away, he can feed, clothe, bathe, drive, and work. The article does not discuss any sleepiness at work, problems driving to work, or problems getting tasks done due to sleepiness or exhaustion. Merely having MS does not make one disabled either. It is the symptoms of MS that are used for determination. Same with sleep apnea or EDS. I know a lot of folks with paraplegia who manage to get up and get to work every day, despite the extra time it takes, because, you know, they plan ahead and adjust their time tables.

The employer already had established a set of rules and the guy still couldn't follow them. So he pulled the "I'm disabled" card. Didn't work. And, sadly, it has not set a precedent for others who follow him.
PaulaO2
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#3
I agree with Paula. If I interpreted the 2nd paragraph correctly, he was allowed some leeway in arriving at work later than expected but need to report to his supervisor and he didn't. I support the Disabilities Act but also know that many people take advantage of it.
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