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Sleeping on the job: terminate or accommodate?

September 19th, 2013  |  Kathy Kapusta  |  6 Comments

Approximately 40 million people in the United States have a chronic sleep disorder. It is estimated that sleep loss issues cost employers $18 billion in lost productivity. While a sleep disorder may be a disability under the ADA, not all sleep disorders will be. So what do you do when you catch an employee sleeping at work? If you have a policy against sleeping on the job, you should be able to disciple an employee for violating the policy, right?

But what if the employee asserts that he fell asleep because of a disability? Generally, an employer does not have to excuse violations of a uniformly applied conduct rule that is job-related and consistent with business necessity. Accordingly, an employer can typically discipline an employee with a disability for engaging in misconduct, as long as the employer imposes the same discipline on an employee without a disability. For example, in 2008, the Eighth Circuit, in McNary v Schreiber Foods, Inc, ruled that an employee who suffered from Graves Disease and diabetes, and who allegedly fell asleep while he was supposed to be working, could not pursue his ADA disability bias claim. The appeals court found that the employer provided a legitimate, nondiscriminatory reason for his termination — violating the company’s policy prohibiting sleeping on the job.

You snooze you lose, or do you? However, a federal court in Virginia recently refused to dismiss the ADA claim of an employee who was fired after he allegedly was caught snoozing instead of working. Despite noting precedent that an employee who can’t stay awake at work would not likely be a “qualified” individual under the ADA, the court found that an employee who suffered from fibromyalgia, and who asserted that he could do his job if his employer would wake him up in case he dozed off, stated a claim for failure to accommodate. The employee had informed his employer about his diagnosis but was terminated after he grew tired at work and “on one or two occasions fell asleep at his workstation.”

The employer argued that the employee was not a qualified individual with a disability and that it was unreasonable for him to ask to be roused whenever he fell asleep.  Denying the employer’s motion to dismiss, the court found that the employee alleged that he had a disabling condition that prevented him from sleeping, that the employer knew about the condition, and that he could satisfactorily perform his job with accommodations. Additionally, he said that he requested a specific accommodation and that his employer refused to provide that accommodation. On this record, the court declined to find that the employee was unqualified.

Failure to accommodate. Likewise, a court in South Carolina found that an employee who was terminated for sleeping on the job in violation of company policy could proceed to trial on her failure to accommodate claim. In that case, the employee, who suffered from migraines, was fired when she fell asleep on the job while trying a new medicine for her migraine headaches. The medicine apparently made her drowsy, and she was allegedly observed sleeping for several hours during her shift, although she claimed to have no memory of this.  Here, she had requested the accommodation of being given time off to get her medicine regulated and to be allowed to have a snack and break when the migraines came on. The court found that there were disputed fact issues as to whether both parties met their burden of engaging in the interactive process in good faith and whether that caused the failure to accommodate her migraines. Her ADA disparate treatment claim failed, however, because she could not establish that her employer’s reason for terminating her was pretext for disability discrimination.

Disability discrimination. Conversely, an employee in Ohio, who was terminated after he was caught dozing off in the company van, was allowed to proceed to trial on his disability discrimination claim under the ADA. In this case, the employee had previously been warned that sleeping on the job would not be tolerated. After he was terminated, his daughter informed his employer that he had been hospitalized and treated for narcolepsy. She demanded that the company provide her father with FMLA leave. While the employee was reinstated and granted leave, he was terminated the same month he was approved to return from leave, allegedly as part of a company-wide reduction in force. The dispute centered on whether he produced sufficient evidence that he would not have been singled out in the RIF but for his disability.

Here, the court observed that the employee was terminated almost immediately after his employer learned of his disability and was terminated a second time after he attempted to return from leave that he took to bring the symptoms of his disability under control. The close temporal proximity between these occurrences, coupled with the circumstantial evidence suggesting that the employee’s medical condition may have played a role in the termination decision, was enough to establish a prima facie case of disability discrimination in the context of a RIF, concluded the court.

Reasonable accommodations. While not all employees with sleep disorders will need accommodations, the process of determining which job accommodation is appropriate in a particular situation should involve a dialogue between the employer and employee. The precise limitations imposed by the disability should be identified. The parties should then explore potential accommodations that will allow the employee to perform the essential functions of the job.

Accommodation Ideas. The Job Accommodation Network has a list of suggested accommodations for employees suffering from sleep disorders. Such potential accommodations include:

  • Providing a device or alarm to keep the employee alert;
  • Providing longer, or more frequent, breaks;
  • Providing a shift change for when the employee is most alert;
  • Increasing natural light or providing full spectrum lighting;
  • Dividing large assignments into smaller tasks and steps;
  • Providing a flexible start time and or end time;
  • Providing a part-time work schedule; and
  • Providing back-up coverage for when the employee needs to take a break.

Responses

  1. Jane says:

    September 2nd, 2015 at 4:18 am

    i just got fired a day ago because apparently another employee took a picture of me asleep at the nurses station without my consent and sent it to the HR. the manager did not tell me anything about it at all, they called me in the HR office at the end of my shift that morning showed me the picture and stated that they had asked the co-workers to report if i am caught sleeping at work. they said that i was caught doing so and that sleeping at work is grounds for termination per company policy and that, that was what was going to happen today and just like that they made me sign the paper and sent the security to escort me outside.
    now I work 2 full time jobs until i was very discriminitary terminated from one, they are 12 hour shifts sometimes they end up being 13 and since i work at night i am not able to sleep that well during the day. there was only the night shift available when i started and while i did not consider working during the day shift yet. i did every thing i could to work the very best at night. i am a nurse. i did not give any wrong medication i did not endager anybody’s life i just accidently fell asleep in a public place because maybe i was very tired or maybe i was just closing my eyes not even sleeping. i am eligeble to sue the former employer and win the case for that? no prior reprimand no writes-ups no counselling nothing. just get your belongings and go. i am very very hurt. please advice. furhtermore is it not against the law for someone to take and distribute your pic without your consent?

  2. Scott says:

    December 29th, 2015 at 7:26 pm

    My employer, the Tennessee Valley Authority, fails to recognize my disability, Severe Obstructive Sleep Apnea, and blames my prescription medication for me appearing sedated on the job. I was diagnosed with SOSP 3/19/15 by the UT Sleep Disorder Clinic. I gave a copy of this report to many of the parties involved in my termination but no one gave it any credit and blamed my medication instead. I have never had a bad annual review, accident, positive drug test, attendance problem or any other during my 12 years of employment with TVA. They decided medication was the problem and sent me to rehab at Bradford Health in Knoxville TN. My test showed I was positive for opiates. I told them that I had a prescription for the medication. They told me they were an abstinence program and prescription or not that was not acceptable. They wanted me to go to in patient treatment in Alabama for 30 days. I ask them what can you do for my chronic pain? Here in Knoxville I am getting medial branch block shots and opiates. They had No answer about what they could do for my pain. I told them that I lived by myself and that it was not finically possible since I have not had any income for about 5 months. They discharged me and told TVA that I was Non-compliant. Shortly after I was given a termination notice. I forgot to mention that I had a accident before I hired with TVA and I compressed T-12. I have been in chronic pain ever since. Living with pain has been bad enough but TVA has ignored the real problem, my disability SOSA and has labeled me an addict and sent me to rehab. When they didn’t have an alternate way to deal with my pain and I stayed on my current pain management I was terminated. Since I was terminated I am not qualified for unemployment insurance. My insurance got terminated without any notice and I got stuck with a few medical bills that I thought my insurance would cover. Just wanted to share my story with someone because not sure what I can do now or what will happen?

    Thanks
    Scott

  3. Anita Maxwell says:

    March 6th, 2016 at 12:39 am

    This is in response to the nurse who works two jobs & was fired for falling asleep while working night shift. If your employer had asked you to stay over to work an additional shift, otherwise there would not be enough nurses on the next shift & you accidentally dozed off pulling this favor, I would definitely speak with an attorney. But, if you are sleeping on your job, you are not monitoring your patients & should be glad that all they did was fire you.

  4. Doug says:

    May 12th, 2016 at 10:10 am

    I have another quandary. What if you knew you could not remain awake because of medical history and medication and tell your employer of it and they still mandate you to work an addittional 10 hours shift overnight, after completeing 8 -12 hour shift? You had been allowed ADA accomodation for years which is now being denied and FMLA may also be denied or used up. Further you are a sole worker in a residential program and are soley responsible for safety of dozens of people, some minors. I have no problem working my normally schedule hours which take place pror to midnight. Or do I skip medication and hope for the best?

    Do I quit the job for fear of placing those under my care and myself in harms way? The federal government sponsored program is void of intervention leaving the contractor in total control. Both Senator and local congressman refuse to help. Union appears to not have enough muscle to over come it. Do I file lawsuit and have to wait months or years for resolution? It would seem that ADA was set up to prevent such a quandary.

    Can anyone help me and others inthissituation?

  5. Mary says:

    May 26th, 2017 at 3:26 am

    Hello, I am looking for help in Ohio. I work as a counselor in drug and alcohol addiction for a hospital. I started nodding off at my desk, despite my best attempts not to, I really did not feel like I had control. I went to a sleep specialist and was diagnosed with OSA. I have a new cpap machine and continues to try and get adjusted, as I work with new masks and learn to not sleep on my stomach. It has been really hard. I have told two of my supervisors of the issue and all of my direct co-workers out of fear, someone would report me. I have been receiving ongoing treatment for this, I have done everything I have been told to do with the OSA. I do not sleep on the job, but do nod off. My job has a lot of para-professionals working there who are in recovery. I actually went to school for 7 years to obtain my masters to become a therapist and have never used alcohol or drugs. There is a lot of resentment towards me at work because I was not the person the staff wanted for my job, although the administration felt I was most qualified and hired me. Any time I get asked to do any special assignments, attend meetings when my co-workers have not, they accuse me of being favored. Unfortunately last week, I did doze off at work and it was reported to HR that I was unconscious on the job. In a hospital setting, when a person is unconscious you would call a rapid response team. Instead, I had pictures of me taken and was observed by a group of my peers. It was reported to HR, I was likely taking drugs. An unresponsive person is typically given Narcan , not photographed and watched by peers. I was suspended from my job, walked out to occupational health for drug testing and was not allowed to drive my car home. While humiliating for me, I understand if this is policy. I asked HR when my drug test results come back negative, which they will, what is going to happen to me? I was only told that employees are not allowed to sleep at work. As far as I know this is the only time, I was sleeping at my desk and I don’t think it was for very long. I get positive performance evals by my supervisors, have been open about my struggles and do occasional nod off for seconds. I am actually a re-hire based on my prior positive work record and am often asked to do extra projects and tasks because of my expertise. There is not a person I work with who does not know I have been trying to get to the bottom of it. I want legal help/advise and do not seem to get any response from employment lawyers, I am just leaving messages. I also would like to know how to respond to HR, we are ruling out other issues that may be causing my excessive sleepiness, but don’t feel like I should have to tell HR every medical situation we are looking into. Thank You

  6. Domonique says:

    September 14th, 2017 at 11:33 pm

    Ok… I was placed on STD in april untill my companion animal accommodation claim was being processed. I was under a doctors care for 5 months submitting documents to support companion claim and irt claim. Employer refuses to accept the same notes ive been submitting just updates. Was denied STD this time around even though i submitted documents showing i was still under doctors care while waiting on companion claim. Job never tried to accommodate my service animal.

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