Disability Discrimination, Quirky Question # 15

Quirky Question # 15:

We have a manufacturing company and we use multiple shifts to operate our plant.  We run three shifts daily (7:00 a.m. to 4:00 p.m., 4::00 p.m. to 11:00 p.m., and 11:00 p.m. to 7:00 a.m.)  We recently reassigned one of our employees to the third, and latest shift.  Our employee balked at this assignment, advising us that his wife has Sleep Apnea and cannot go to sleep unless he is present.  Would we be in violation of the Americans With Disabilities Act if we insist that the employee work the 11:00 p.m. to 7:00 a.m. shift?

Dorsey’s Analysis:

Your question implicates both legal and practical issues. From a legal perspective, the answer to your inquiry is “No.” Although the Americans With Disabilities Act (ADA) does include a provision that prohibits an employer from discriminating against someone because of that person’s “association” with a person with a disability, that provision does not extend to the fact pattern you presented.

For example, your company could not refuse to hire the parent of a disabled child because you were concerned the employee was likely to have attendance problems. Such a decision would violate the ADA. Similarly, your company could not refuse to hire the spouse or partner of someone who is HIV-positive because of an irrational fear that the virus could be transmitted to another employee. Again, such a decision would violate the ADA.

Even if we assume for the sake of discussion that “Sleep Apnea” is a disability (perhaps a close question in itself), this means that you could not refuse to hire this person out of a fear that his wife’s condition might interfere with his ability to work. But, under the guidelines promulgated by the Equal Employment Opportunity Commission (EEOC), a reasonable accommodation is something that an employer must provide only when an employee him/herself is “disabled.” There is no obligation to provide an employee an accommodation because that employee is associated with someone else who is disabled. Given that fact, your company has no legal obligation to give this employee any preference in scheduling, allowing him to forego working your “midnight shift.”

Perhaps, however, the analysis should not end there. Even if your company had the right to insist your employee works the final shift, should it? Let’s assume that your company rotates its employees among the three shifts on an equal basis, with each employee working four months annually on the latest shift. How important is it to your company that this particular employee work that shift each year? I recognize that this issue implicates questions which the company is best positioned to assess – how many employees work the late shift; would other employees resent it if this particular employee was not required to work this shift, especially if they understood the circumstances; how difficult would it be to find another employee to work the shift instead; have other employees requested relief from working the night shift; etc. You might discover, however, that you have another employee who prefers working the latest shift and who would gladly exchange shifts with the employee who has requested the accommodation.

Even if that solution did not present itself, there are a few other inquiries you might wish to consider – how would other employees feel if you did not accommodate this employee under these circumstances (e.g., would the decision be perceived as another indication of the company’s inflexibility towards its employees); or, is the employee likely to quit if no accommodation is made and, if so, would the company regret its decision (e.g., if the employee was a committed, high performing, loyal employee). Alternatively, what if your employee did not have the financial flexibility to quit and explore alternative employment and, resentfully, worked the third shift. How would you feel (and how would your other employees feel) if there was a tragedy during this period due to the employee’s wife’s Sleep Apnea?

If your analysis of these issues would cause the company to feel differently about this issue, there should be some creative solutions to the problem you are confronting. For example, you might want to work with the employee to explore whether there are technological solutions to the problem he is confronting (equipment that awakens someone who is having difficulty breathing). (Coincidentally, in yesterday’s Star Tribune, there is a reprint from the Wall Street Journal, Sunday, entitled “Testing for Sleep Apnea,” January 13, 2008, p. D-6, addressing some of the developments with regard to testing for this medical problem.)

The bottom line is that understanding your company’s legal rights is a critical first step. At times, however, this understanding simply helps you frame other equally important inquiries.