Fired for sleeping on the job: Disability discrimination?
October 17, 2008 by Sam NarisiPosted in: Americans with Disabilities Act, In this week's e-newsletter, Latest News & Views, Recent Decisions
Often, employees’ medical conditions mean employers must make exceptions to certain policies. But how far do you need to go?
Read the facts of this real-life case and decide: Who won?
The facts:
An employee was caught sleeping on the job, so he was fired. He sued, claiming he had a medical condition that required him to take quick breaks to “rest his eyes.”
The employer said:
The worker broke policy by taking an unauthorized break in order to nap. Also, he had never talked to HR about getting accommodated for his illness or turned in a doctor’s note saying he needed an accommodation.
Who won the case?
Answer: The employer.
Why? The company was justified in firing the man for sleeping on the job and taking an unauthorized break.
If he had gone through the proper channels to ask for an accommodation, things might have been different. But he didn’t, so the company was off the hook for the termination.
Cite: McNary v. Schreiber Foods, Inc.
Tags: ADA, Americans with Disabilities Act, policy, sleeping on the job
October 17th, 2008 at 10:52 am
I am interested if anyone has dealt with similar circumstances.
I am dealing with an employee who has filed a fairly thorough FMLA certification citing three diagnoses but does not speak to any medications the employee has been prescribed. (I ofen wrestle with how much information I really need.) This same employee has fallen asleep twice in the past month yet this thorough FML certication does not speak to falling asleep, drowsiness, etc. We have a work rule against sleeping on duty. We have counseled the employee already and if the employee falls asleep again we are ready to enter into progressive discipline. However, we don’t want to be prematurely punitive.
So, I am looking for insight into how others have handled a situation like this. Specifically, if you have sought additional medical information from the employee’s physician or sent the employee for a second opinion. Or anything else you have done that may be useful for me to consider.
All comments are appreciated.
October 22nd, 2008 at 10:46 am
Tom -
You should not seek additional info about the disability itself or the actual medication prescribed, but could contact the doctor to inquire IF any of the medications prescribed to the the employee could affect the safe performance of his job (and specific the duties he performs - one more reason to have a thorough job description with physical requirements of the job). This inquire might not give you the info you need if he has a desk job because falling asleep might not put him in any jeopardy. In my environment, it would be a big deal. Hope this helps.
October 22nd, 2008 at 10:47 am
I had an employee return from a DBL and proceed to sleep through his entire shift. Nothing he provided upon his return indicated that he needed modified duty or additional breaks. We fired him for violation of policy (in addition to the fact that he was yelling at co-workers upon arrival to leave him alone all night). At the unemployment hearing, his attorney showed up with all of these medications that he was apparently on that made him tired. Although we were not made aware of these meds, we actually lost the unemployment case. I was furious. I would do the same thing again knowing we were ‘in the right’.
October 22nd, 2008 at 10:55 am
Setting reasonable accommidations for employees with FMLA certification should require some level of detail of what accommidations are required. You as the employer should ask (require) supporting medical documenation of set these accommidations. If not you expose your self to employees taking advantage of FMLA or WCOMP. Any violations fo company rules or policie outside the reasonable accommidations should result in progressive discipline.
Sleeping on the job should never be a reasonalbe accommidation, it promotes poor productivity, its a safety concern, and sets a poor example of your organization not only to employees but customers and/ or share holders.
October 22nd, 2008 at 11:08 am
We had a new employee who would come in hungover. She would walk around like a zombie. I fired her after someone reported that she was sleeping at her work station. She wasn’t fired only because she fell asleep. It was a matter of safety. Her position required her to handle a soldering iron and we didn’t want to risk an injury.
October 22nd, 2008 at 1:35 pm
To everyone, thanks for the feedback.
October 22nd, 2008 at 2:12 pm
We had an accounting employee who would sleep at his desk, upright, sitting in his task chair. He never asked for any accommodation, nor did he say anything about medication that might make him drowsy. He just said he got sleepy and would doze off…sometimes for 40 minutes to a couple of hours! And he snored! We warned him, then let him go when it continued. Maybe we got lucky, but he didn’t sue. He did file for unemployment, however, and he got it.
October 22nd, 2008 at 3:35 pm
FMLA currently prohibits us from contacting the doctor directly. The only medical inquiries we can make are the specific questions on the DOL Model form, and those questions need to be filtered through the employee. FMLA also only applies to the need for a leave of absence when the employee is incapacitated. If the employee is sleeping on the job, that is potentially a sign that s/he is incapacitated and you could ask the employee if s/he needs leave. If the employee says yes, you can then require a recertification and/or release to return to work before allowing the employee to return because the circumstances have changed.
ADA requires us to make reasonable accommodations for a person with a disability so that s/he can be successful in performing the essential functions of the job. As this article points out, it is the employee’s obligation to let us know when/if they have a disability that requires an accommodation. On the other hand, employers have also been found guilty of failing to engage in the “interactive process” when they knew or had reason to know that an employee was disabled and didn’t discuss possible accommodations. So, the question for Tom P. is does the FMLA form give you reason to know that the employee might be disabled? If so, I recommend that the employee be reminded of his/her right to request an accommodation for medical conditions if necessary. Then, leave it up to the employee to make the request.
I’m also recommending that you go straight to the employee because, although ADA permits us to go directly to the doctor for medical documentation, most doctors will cite HIPAA and refuse to say anything without the employee’s consent.
Finally, Tom’s note indicates the employee has been “counseled” about sleeping on the job. I typically ask “Why is this happening?” when counseling or coaching an employee. What has been the employee’s response? If she isn’t saying anything about side-effects from medication, then I would recommend sticking to the issue of the unacceptable behavior and proceed with your formal corrective action process.