sleep disorder and excessive tardiness

rrhammett

We have an employee that was schedule to work 7:00am to 7:00pm Fri-Sat-Sun. The ee has been anywhere from 15 minutes to 2 hours consistently late for work, at least one or more times a week. He states that he has a sleep disorder and just can't get up and get here. He saw a physician aprox 10 months ago and brought a note that he had been tested for sleep apnea, which was negative, however, there was a possibilty that he may possess symptoms of narcolepsy. The doctor was adjusting his medication. No other information has been received. He has been counciled on several occasions regarding his tardiness. We recently changed his schedule to the 2nd shift 5:00pm to 3:00. After only being on the new shift for a few days, the employee shows up late again, this time he his given a final written warning regarding his tardiness; the employee responds by stating that the plant manager, supervisor, including HR knew of his sleep condition and that he is seeing 7 doctors for this disorder. Again, the only documentation that has been provided to us was as stated above 10 months ago. We do not believe this is a disabilty under EEOC regs and we certainly don't believe that allowing him to come to work when he gets up is a resonable accomodation in any way.

Any ideas or new perspectives?

David Hagaman GA

Certain sleep disorders, such as sleep apnea and narcolepsy, may be disabilities under the ADA. Your best bet is to get a competent medical opinion (send him to a specialist) describing any restrictions the employee needs, and then consider whether there are any accommodations that would allow the employee to still perform the essential functions of his job. Good attendance is generally considered an essential function of every job. Changing work schedules may be a reasonable accommodation, depending on the particular facts. You've already attempted an accommodation by changing his schedule (you didn't say if the schedule change was at his request), but either way he still has to get to work on time.

Don D

The ee's cooperation is necessary to work within the parameters of the ADA. All he's given you so far is a partial report 10 months ago. If the ee is claiming coverage under the ADA he has a responsibility to follow your instruction to get a complete medical report to you from a specialist in a reasonable period of time, something that establishes in fact, ADA relevance. If he asks, you could assist by recommending those you know to be specialists. If you get a report you have reason to doubt you can require he see a specialist of your choosing (except in California I guess). I really get the feeling that he is not cooperating. You can't offer or agree to an accommodation unless you have the request for one based on a sound medical report. You are not required to run along one step ahead of ADA forever. Reasonable time is the key here. Document in a certified letter to him what you require. If he's still not cooperating and won't seek the assistance of a Baby Ben, and can't otherwise meet your requirement of being at work on time you may have a termination at hand.