On October 31, I posted here about an employee who was terminated from his job after he requested reasonable accommodations under the ADA for his narcolepsy, and the employee, Brian Mahn filed suit. While I often get comments or questions regarding a post, until now I have never heard from anyone who was the subject of any of my posts. As they say there’s a first time for everything. Mr. Mahn reached out to me and enlightened (read, corrected) me about some of the details of his case and asked that I share them. I am happy to do so now. Read on to learn his specific allegations, after which I will offer some additional takeaways.
For the next few paragraphs, I’m going to let Mr. Mahn tell you himself. Here is what he told me:
Since narcolepsy and its related issues (cataplexy, excessive daytime sleepiness, etc.) is a lifelong chronic condition with limited medical options, many PWN (People With Narcolepsy) build up tolerances to their medication and periodically need to change their medication regimen and sometimes doctors as well (e.g. only a few doctors in each state are allowed perform studies for promising new drugs).
That’s what happened to me. I have never fallen asleep on the job, but workplace naps are often requested by the doctor as part of the overall treatment plan. Below is a screenshot of the letter my doctor sent requesting my employer to accommodate short naps, but only when/if needed. I was terminated 2 weeks later because my employer, in their own words, could “no longer accommodate [my narcolepsy] disability.
While the nap accommodation request seemed to be the final straw, the real issue was actually a safety issue … not an ‘on the job’ safety issue, but rather it was a ‘going to the job’ safety issue.
Since some drugs take weeks to effectively provide the intended treatment, a change in medicines and routines is a slow and methodical process often involving multiple sleep tests, doctor visits and dosage adjustments. Many of these medications can impair driving until the user has become accustomed to it. Driving while drowsy and ‘foggy’ is equivalent to driving drunk and doing so puts the PWN life in jeopardy on a construction-laden highway during Houston morning rush hour. More importantly, it also puts the lives of all other drivers on the highway and their passengers in danger as well. That is not an acceptable risk when there are safer alternatives available that the company was already providing to other employees.
I was diagnosed with narcolepsy about 20 years ago and have never requested any accommodations from any employers until I needed to do so recently and temporarily at Apache because my change in doctors and medicine regimen occurred during a project phase which itself was temporary.
Although my condition is chronic, my request for accommodations was only needed until my treatment was effectively under control again. And that accommodation was only concerning a few hours in the morning until I could safely drive to the office. And while attending morning project meetings remotely via Skype was made available for every meeting and was used by third-party contractors and occasionally by some employees, my department manager deemed it was not an appropriate accommodation for me and so I was prohibited from using it.
OK, let’s have a look at what happened as explained by Mr. Mahn:
While Mr. Mahn did have a doctor’s note requesting the option of a short nap if needed, he only asked for a temporary accommodation in the mornings until he could get to work safely. He pointed to the possibility of attending any morning project meetings via Skype, which apparently was available for other employees and third-party contractors. A slight and temporary schedule change may have been another option.
Whatever the ultimate outcome of this case, the point for the rest of us is that an employer must explore all possibilities with an employee, and evaluate which options best address the situation without posing an undue hardship. Failure to do so is a likely ADA violation. While we do not know Apache’s take on the matter, if Apache cannot show that it did in fact try to find a reasonable accommodation that did not pose an undue hardship, it will be on the losing end of Mr. Mahn’s claim.
Additionally, as I previously pointed out, Mr. Mahn, had he chosen to ask for a temporary leave of absence, would have also had rights under the FMLA. At the very least this employer would have needed to apprise Mr. Mahn of those rights and afford him the opportunity for FMLA leave.
I want to personally thank Mr. Mahn for reaching out to me, not only to correct me in my summary of the issues, but also for the rare inside view of his situation that led to his filing suit against his former employer.
I also want to take this opportunity to remind all employers and managers that when an employee asks for an accommodation, particularly a temporary one based on a medical condition, the ADA impose obligations to, at the very least engage in the interactive process and attempt to provide a reasonable accommodation.
I think I’ve made my point. Good luck, Brian Mahn!
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