Please consider the following scenario and tell me what you would do? Employee diagnosed with sleep apnea and is given treatment that involves the use of oxygen whilst sleeping at night; they have to use this every night and it is for an indefinite period if not permanent. They are instructed that not using it will increase the potential for them to fall asleep during the day. The employee fails to follow medical advice and subsequently falls asleep at work. The company send the employee to occupational health who advise him to start and continue using the treatment [which he should not have stopped in the first place]. The employee has to use forklift trucks and machinery as part of his job; OH have advised that he is fit to return to work as long as he maintains treatment. My concern is he has failed to do this once already; IF he failed to carry out this instruction a second time and fell asleep at the wheel of a vehicle at work the consequence could result in the fatality of another employee. I am really uncomfortable permitting this person to operate vehicles but respect that there are many equallity and disability acts and regulations which must be considered. What are your thoughts on this and does the safety of others over-ride what could be considered a disability? Thank you in advance for your comments Chris

Had a very similar scenario with a tanker driver. Agree with David close communication with HR (escpecially) and Occupational Health. I assume he still has his car/hgv driving licence? There is no reason for DVLA to withdraw it so long as he keeps up his treatment... We were fortunate that we had identified the role as safety critical...which meant a required performance standard... I drafted a reply but it is too emotive for a public forum...you have a PM. Thanks Steve

Chris, you don't actually say where or when he fell asleep, but hopefully not whilst operating a FLT! People do fall asleep at work, sometimes just a cat nap in their break time, whilst chilling, etc. I will not repeat the good advice already provided, I will add that the safety of others is paramount. Hence you need to be confident that this person does not present an unacceptable risk to himself or others. Having already identified an incident, albeit due to him not taking his prescribed treatment, increases the likelihood of a repeat incident in my view. I would seriously consider removing him from risky operations until confident that he no longer presents an unacceptable risk. Health and safety supercedes any disability, discrimination issues, so don't worry on that score.

A friend of mine who suffers from this informed the DVLA and he had to answer a questionnaire to ascertain the level of his OSA. Questions were like:- Do you fall asleep during the day while you are... a) Having a conversation 4 points b) Reading 3 points c) Watching TV 2 points d) After a meal 1 point The higher your score, the more chance you have of losing your licence, i believe. This may be of interest. http://www.sleep-apnoea-...A%20Driving%20%20OSA.pdf

You may like to talk to him and ask if he has much warning that he is going to fall asleep, i.e. is he out light or does he gradually go over 30 minutes? It would make a big difference to the actual level of risk. If he has reasonable warning he can actually park up and sit down in a safe area.

On the link provided in response No 7, Bob, the Sleep Apnoea Trust offer different information. It offers examples of severe daytime sleepiness to mild or moderate OSA in relation to whether they should drive or not.

Frankc I think the trust are being a bit wishy washy - certainly colinreeves post gives a pretty accurate picture of what happens to almost all patients regardless of severity. The DVLA know that sleep can overtake the person at any time and there is no real margin of error for a RA to be undertaken. Once treatment is established they are happy to re-instate a licence. Bear in mind that if anything does happen and treatment is not being followed the Police will always look to the most severe sentence as the person knows they have a problem. Any accident involving falling asleep will almost certainly mean at least a dangerous driving charge - an injury or death as a result will bring the full weight of the law. The OP has a problem and he has to get the employee to use his treatment or perhaps get his HR to look at dismissal via capability issues. Yes the person is disabled but that does not provide a right to put others at risk of major injury or death.

I think I am going to have to question who exactly has been treating this person. GPs are know to use O2 therapy as a stop gap but is has risks including elevated daytime CO2 in blood levels. I do think you need to look further at WHO is treating if it is not a sleep clinic then you have to do some hard thinking. Like Paul I am hopeless without my CPAP machine

I had a similar situation. An employee (with a poor safety record) was advised by their GP that they may have SA and they were refered to a sleep clinic. I advised the site safety officer to take him off MHE until we could sort out whether or not he was safe. They did not do this, and later on the same day the employee was found asleep on a counter balance truck. We had to work with the employee, occuaptional health and HR to work aiut a plan. This included self help activities to supplement the treatment following diagnosis. SA can be helped by weight loss, CV exercise, reducing alcohol and stopping smoking. The employee found it helpful to cycle to work and drink less - the result of this also led to weight loss. I would suggest a similar approach. Make sure you involve the employee in all of this, as per the principals of vocational rehabilitation.