Is it obvious to you that sleeping on the job should constitute a basis for termination of employment? It would seem that way but, per a recent circuit court decision, that might not be the case.

I have personally considered sleeping on the job to be egregious under circumstances where safety is involved. I tried at least five cases in which the Transportation Security Administration (TSA) contract workers fell asleep while they were supposed to be guarding access doors at LaGuardia and Kennedy Airports in New York. One claimed that he was reading a textbook such that the surveillance video captured eyes that were purportedly not closed but simply looking down. In another matter, the defendant asserted that he was not asleep despite the fact that he was sprawled on the floor in front of an area marked “authorized personnel only”. It’s the one instance where the iPhone video sealed the deal. A pilot captured his snores and, as we say in the law, the thing speaks for itself.

But, what if the employee claims that he suffered from a medical condition which disrupted his sleep patterns and made him unduly tired at work? That was the case in Riddle v. Hubbell Lights, Inc. (W.D. Va., July 19, 2013). Therein, the employee requested a FMLA leave which enabled him to call out on any day when he felt that he was too tired to work or to notify his supervisor of flareups of his fibromyalgia. The next day, he fell asleep on the job, without having notified the supervisor and was discharged. He sued, alleging that, knowing his medical condition, the employer was obligated to wake him up. He brought the action under the Americans With Disabilities Act, claiming that he could perform essential job functions with what he considered a reasonable accommodation, namely, being awakened by the supervisor, and that the employer refused to make that accommodation. The court denied the employer’s motion to dismiss, holding that it was possible that he was a qualified plaintiff under the ADA.

The message of this case is that no accommodation request should be dismissed out of hand. An employer should document the request and the basis for a denial. It should further demonstrate that it engaged in conversations with the employee regarding the accommodation, considering its business needs and the reasonableness of the request. Any request, even if seemingly far-fetched, should be evaluated — and courts may hold that it is required.

Employers are at risk if they attempt to navigate through the accommodation process on their own. Counsel should be consulted for guidance early in the discussions.

Judge Ruth Kraft, an employment law expert at Kirschenbaum & Kirschenbaum. She can be reached at (516) 747-6700 ext. 326 or at [email protected].

 

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