Our recent post on sleep apnea as a disability brought some good reader questions and comments which bear posting. One, from a Mexican lawyer, and a second, from a Canadian talent officer, ask some good questions about American laws — does anyone want to try responding?
The last brings Shakespeare (Shakespeare?) to bear on sleep apnea.
Luis Daccarett, Judicial Law Clerk in the 2nd Constitutional Court of Appeals in Mexico:
“I wonder if the real underlying cause was apnea or insubordination.
Two questions arise from my reading, if I may:
(1) Why wasn’t he offered his job back instead with the police? In the event he were, did he have to take it?
(2) Is the paying of damages the only way to settle an employment dispute in legal America?
Sonia Dhaliwal, a corporate chief talent officer in Toronto:
“I’m a HR manager from Canada who advises for our divisions in the US. I’m still trying to get to know my US federal and state employment law.
I have a truck driver who suffers from insomnia. There’s a lot of safety concerns in his case. He’s off now and not driving, but we’ve considered letting him go. Would insomnia also be considered as a disability? It’s part of his essential job duty to drive and there’s no way to accommodate him.
I’ve asked for a fit for duty assessment to be filled out by his doctor or provide us at least with what we can accommodate him with and it’s been 3 weeks and hasn’t returned any medical documentation. And it’s in the state of Illinois which is considered “employment at will.”
I’m wondering if we can terminate him? There’s potential safety risk for himself and others. Even if he’s prescribed the proper medication it doesn’t guarantee that he won’t fall asleep at the wheel. If he was in an accident, it could be a potential liability because we didn’t protect the public or him.
Finally, Johann Scheepers, Commissioner at the Commission for Conciliation, Mediation & Arbitration, in Pretoria, SA, our faithful rapporteur from South Africa, had this sleep-related case to add, in which he weaves in the immortal words of the great Bard:
“Apnea is indeed a serious medical condition and classified as a disability. Without timely medical intervention the said ‘sleep disorder’ may have disastrous consequences.
Having read the posting a recent matter came to mind that was before the South African Labor Court in the form of an application for review of an arbitration award. The Applicant contended that the presiding Commissioner [Arbitrator] had based his findings on irrelevant considerations, that that the award was irrational and unreasonable. However, a further unusual ground for review was raised – that the Commissioner had snoozed through the arbitration hearing.
The Court set down a new ground of review: statutory Arbitrators must be alert and awake at all times during the proceedings, or they perpetrate a “defect” within the scope of section 145(2) of the LRA.
Not applying the mind is bad enough. But succumbing to “Nature’s Soft Nurse” takes the cake.
The writings of Shakespeare came to mind:
‘O sleep, O gentle sleep, nature’s soft nurse, how have I frighted thee, that thou no more wilt weigh my eyelids down, and steep my senses in forgetfulness’. [William Shakespeare, Henry IV, Part II, Act III, sc. 1].”