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Sleeping on the job: terminate or accommodate?

September 19th, 2013  |  Kathy Kapusta

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.