By Kathleen Kapusta, J.D. Even if an employer was entitled to seek additional medical documentation showing an employee with sleep apnea needed his requested accommodation of not working third shift and it had provided sufficient notice regarding the information it needed, it still would not have been entitled to summary judgment on his failure-to-accommodate claim, ruled a federal district court in Wisconsin. Not only did it fail to explain what was wrong with the information provided, it did not deny that the information made it clear it was dangerous for him to work third shift, at least until he could transition safely to sleeping during the day. Thus, a reasonable jury could conclude that the request for more information was not made in good faith (Hafermann v. Wisconsin Department of Corrections, January 15, 2016, Crabb, B.). When the corrections officer was assigned to work the third shift, he told his employer he could not do so because of his severe sleep apnea and cardiac problems. He also submitted a letter from a nurse practitioner stating that the night shift was a known risk factor for those with sleep apnea, and particularly those with cardiac health conditions. In response, the employer requested more information, sent the employee a questionnaire for his health care providers to fill out, and temporarily assigned him to work first and second shifts until his scheduled vacation. Questionnaire. Upon his return from vacation, the employee was again assigned to the third shift. He returned the questionnaire, in which his health care providers stated he needed time to adapt to sleeping during the day and the duration of his impairment was unknown. They also indicated he might be able to perform his job with a reasonable accommodation if he had time and he “needs to work day shift.” In describing the accommodation needed, they wrote “to adjust to the new shift change.” The employer again asked for more information and refused to assign the employee to a vacant first-shift position. He took medical leave to avoid working the third shift and ultimately resigned and sued under the Rehab Act for, among other things, failure to accommodate. Failure to accommodate. His employer first argued he was not an individual with a disability but the court found it undisputed he suffered from coronary disease and severe sleep apnea. Instead of discussing his evidence of impairment, the employer argued that his conduct—applying for a prison security director positon that could require third-shift work and volunteering to work back-to-back first and second shifts before he requested an accommodation—showed that his “sleep apnea did not interfere with his ability to work late into the night or early in the morning.” Rejecting these arguments, the court pointed out that to prove disability, a plaintiff must show a substantial limitation on a major life activity, not that he is unable to work. Further, even if the employee’s ability to work on third shift were dispositive of whether he was disabled, at most, the employer’s allegations provided grounds for treating as disputed his testimony and his medical records. Moreover, because the employee alleged he suffered when he did work third shifts, his employer’s allegations could not show as a matter of law that he was capable of working third shift on a regular basis. Accommodation need. The employer next argued that the nurse practitioner’s letter and the questionnaire answers failed to show the employee needed the requested accommodation in order to perform his job. Observing that the letter was an unambiguous request that he “be scheduled on shifts that do not include the night shift” because of “his significant problem of obstructive sleep apnea and hypoxia during sleep” and “his cardiac status,” the court found his employer had no reason to question after reviewing the letter that his health care providers believed he should not be working the night shift due to his disabilities. As to the employer’s contention that the letter did not clearly explain why his disabilities prevented him from working third shift, the court pointed out that the objections raised the question of the extent to which an employer is entitled to require an employee’s health care providers to provide the grounds for their opinion that a patient needs an accommodation. Finding it need not resolve the question whether the employer was entitled to seek clarification, the court held that even if it was, it did not ask for clarification. It did not tell the employee what it believed was insufficient about the letter or what additional information was needed. As to the questionnaire, it only asked general questions regarding whether he was disabled. Neither the employee nor his health care providers had notice of the additional information the employer claimed it needed. A reasonable jury could find that by failing to provide that notice, the employer caused the breakdown in the required interactive process. Even if it was entitled to ask for more information and it provided sufficient notice regarding the information it needed, it still refused to accommodate the employee even after he returned the questionnaire. While the employer argued that the answers to the questionnaire were confusing and suggested that the employee might be able to adjust to working the night shift, it failed to explain what was wrong with the answers or identify what additional information was needed. Although the employee’s health care providers did not explain how he could transition safely to third-shift work, that was an argument for giving him an accommodation until the employer could receive more information from the providers, not for refusing an accommodation.
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