In one recent case, an employee was fired after dozing off during duty.

His job: flight instructor for Southwest Airlines. Frequently he would fall asleep while giving lectures. The problems continued for about a year and a half before he was terminated.

The employee suffered from sleep apnea — meaning he often couldn’t control when he fell asleep. He told his manager the problems would be limited if his shift was changed — but that would have required other employees working longer, so no change was made.

He also argued that he could work just fine despite his condition. But the company wouldn’t take any chances — after all, his job was to make sure pilots could do their jobs safely. So, without any other options, the company fired him.

He sued, claiming Southwest fired him because of his disability, in violation of the Americans with Disabilities Act (ADA).

Accommodating sleeping disorders

Who won the case?

Answer: the company.

The court ruled it would’ve been unreasonable for the company to continue having an employee with a sleep disorder train their pilots on how to stay safe. Since he couldn’t perform the essential functions of his job — and no reasonable accommodation seemed to be available — the company was right in firing him.

Note: ADA suits are always case-specific. A condition that prevents employees from performing one job may not have the same result in others.

In some positions, allowing an employee the chance to take short rest periods may be a reasonable accommodation for a sleeping disorder.

What unusual accommodation requests have you received? Let us know in the comments section below.

Cite: Grubb v. Southwest Airlines

The process won’t always be successful in keeping a disabled employee on the job. But the law requires employers to try.

Here are some keys for doing it right, from the employment law firm Jackson Lewis:

• Don’t just spell out one accommodation as a take-it-or-leave-it offer. It’s possible there’s only one reasonable solution, but all alternatives should be considered and discussed before the decision is made.
• Ask for the employee’s preference. The law says employees and employers have to have an interactive conversation. That doesn’t mean the employee will get what he or she wants, but the company at least needs to explain why the preferred accommodation is unreasonable.
• Document everything. If no reasonable accommodation is found, a written record of everything that was discussed with the employee will be necessary to prove the company did everything it could and met its legal obligations.
• Don’t forget the “last resort” accommodation — transferring the employee to an empty position that he or she can handle. But remember, that’s only to be considered after all other possibilities are exhausted.

The key is having an open discussion, rather than offering one take-it-or-leave-it solution.

In a recent case, an employee was having trouble doing her job because of a disability. When she saw her boss to talk about possible accommodations, the manager offered to transfer her to another position. The employee turned the offer down.

She then suggested a number of other options, including low-cost equipment that would help and a slight change in procedure that could enable her to get the work done. But the manager repeated that she could transfer to another job and refused to discuss the other possibilities.

The woman was later fired for poor performance and policy violations. She sued, claiming the company failed to accommodate her disability.

The court ruled in her favor. Though job transfers sometimes qualify as reasonable accommodations, the judge ruled that is only a last resort to be taken once the company examines other possibilities that keep the disabled employee in his or her current position.

Failing to even consider other reasonable alternatives, the company did not meet its legal obligations.

The bottom line: Disabled workers don’t always get the accommodations they want. But companies are required to engage in an “interactive process” with the employee to figure out a solution that is best for the employee, but still reasonable for the company.

Cite: Austin v. Wal-Mart Stores, Inc.

The key is distinguishing between personality tests and medical examinations that can be used to diagnose psychological disorders.

How can companies tell the difference? The EEOC says tests may be illegal if they are:

• administered by a healthcare professional
• interpreted by a healthcare professional
• designed to reveal a physical or mental impairment
• detailed enough to be considered “invasive”
• designed to measure an applicant’s “psychological response to performing a task” (rather than “an ability to perform the task”)
• normally given in a medical setting, and
• administered using medical equipment.

Normally, courts will look at a combination of those factors before ruling against a company — but sometimes one is enough.

For example, in this case the company lost because it used a test that was normally administered in a medical setting — even though the results weren’t interpreted by medical professionals.

Because of the danger of those types of lawsuits, its important for employers to:

• examine what information their testing may uncover
• make sure the tests are job-related and reveal traits relevant to the specific positions they’re used for, and
• only use tests that have been validated as ADA-compliant.

An employee suffering from MS had a few unfortunate “bowel accidents” at work due to his condition. So what did his mature, empathetic co-workers do? They left a child’s potty training book at his desk and started calling him names like “Poopy” and “The S***meister.”

The man sued, claiming he was subjected to a hostile work environment because of his disability.

But the company won the case. Why? The employee never complained to HR or a supervisor about the conduct. Therefore, the company had no obligation to do anything.

As other cases have shown, even immature jokes can turn into harassment or discrimination suits, which is why companies need to take employee complaints seriously. But the kicker: The employee has to complain first. Courts don’t expect companies to deal with discriminatory conduct they don’t know about.

Cite: Murphy v. BeavEx, Inc.

Depending on the situation, employees with alcohol problems might get protection from two laws: the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA).

Neither Act give employees automatic immunity from discipline for performance or policy issues, like drinking on the job or unexcused absences. But they do protect people being treated for their problems.

FMLA

Under the FMLA, courts have ruled that alcoholism qualifies as a “serious health condition.” But unlike some other conditions, employees only get to take leave for the times they’re being treated.

So for example, a shift missed because the employee couldn’t drive to work isn’t covered. But time off to go to rehab is.

ADA

The ADA works in a similar way: Current abuse isn’t protected, but treatment is.

So you can discipline or fire someone who drinks on the job, assuming you have a uniform policy against it. But you may need to allow schedule changes for an employee to see a doctor, or let someone take breaks to call an AA sponsor.

Long story short, the courts have been clear: employers are allowed to prohibit alcohol consumption and inebriation in the workplace, and they don’t have to hold alcoholic employees to lower standards – as long as accommodations are made to help an employee get treatment.

The biggest problem for employers is the increase in mental disorders that are protected by the Americans with Disabilities Act (ADA). Some conduct that would normally be considered inexcusable might in fact be caused by protected mental problems.

If that’s the case, you might be required to make policy exceptions or take alternative action instead of firing someone.

Protecting against threats

One thing courts have been relatively clear on: Employers have the right to keep their workplaces free of threats and violence. In other words, a mental disability won’t fly as an excuse if someone threatens or injures a co-worker. (In fact, if you think someone’s a threat and don’t fire him or her, you can get sued for negligence if some violence actually occurs.)

But thinks get tricky when the conduct isn’t quite so serious.

In one recent case, even destructive behavior and profanity weren’t enough to warrant an immediate termination. A woman was given a copy of a performance plan while she was in an evaluation meeting with her supervisor. Finding it to be unfair, she threw the papers across the room and cursed at the supervisor. Later, she was seen throwing other objects around and kicking her cubicle walls. Not surprisingly, she was fired.

But she sued the company, claiming her behavior was the result of her bi-polar disorder. The company lost. Why? Because it knew about the disorder beforehand, and it couldn’t prove the woman posed a “direct threat” to anyone in the office (Cite: Gambini v. Total Renal Care).

Conclusion: It’s a tricky legal area, to say the least. But one lesson is clear: If someone tells you they’ve got a disability, it’s smart to think about other options – and possibly talk to legal counsel – before dropping the ax.