I think we can all agree that employers are entitled to expect employees to show up to work and actually work. That means employees shouldn’t be coming in late, leaving early, gossiping, surfing the internet or engaging in other similar activities when they should be working. They generally shouldn’t be sleeping on the job either. It therefore follows that if you notice your employee falling asleep at work and, particularly if you notice a drop in productivity you are well within your rights to fire him or her, right? Not so fast! It might be illegal. Wait. What? Why would you have to keep an employee who sleeps on the job? Most employers aren’t paying their employees for that. What gives? Read on for a look into when and why you may not be allowed to fire an employee you’ve caught sleeping at work.
(image from thesleepworks.co.uk)
As I often do, I’m going to use an actual case to illustrate the point. Brian Mahn worked as a contract and lease analyst for Apache Corporation in Texas for four years. He often fell asleep on the job. You see, Mr. Mahn has struggled with narcolepsy for most of his life. In case you don’t know, narcolepsy is a medical condition that affects the brain’s ability to control sleep cycles. At some point, Mr. Mahn’s condition changed and he required a change in treatment. That is when he experienced difficulties at work, particularly staying awake during they day. He asked his employer for a modified work schedule, and, for a few months, Apache complied. Then, after a few months, Apache withdrew the accommodation and ultimately fired him in May. You know what’s coming now, right? Mr. Mahn sued.
Does Brian Mahn have a case? It appears he does. Based on these facts, it seems likely that Apache violated the Family Medical Leave Act (FMLA) and the ADA (and ADAAA). Let’s look at each one separately.
Apache Corporation appears to have well over 50 employees within a 75-mile radius. Having worked at Apache for four years, and apparently having worked the requisite 1250-hour minimum in the previous 12 months, Mr. Mahn was preliminarily eligible for FMLA. Narcolepsy being a serious health condition, Mr. Mahn was eligible for up to 12 weeks job-protected leave. So, FMLA leave to try to get his treatment and sleep schedule worked out should have been an option. When an employer has knowledge of facts that would suggest need for and entitlement to FMLA it is required to inform the employee that s/he may be entitled to FMLA leave to address their health issues. Apache apparently failed to do that. Moreover, if an employee is eligible for FMLA leave, as Mr. Mahn appeared to be, the employer must grant that leave, even if doing so would create significant difficulties. (Hardship only becomes a consideration under the ADA and then only when FMLA protections do not also apply — more on that in a moment.) Had Mr. Mahn been granted an FMLA leave with time to deal with his narcolepsy and the treatments, he might still be working at Apache now.
What if Mr. Mahn had chosen not to take FMLA leave (which he seems not to have looked to do) or what if he took FMLA, exhausted the 12 weeks and still wasn’t quite back up to par? Could the company have fired him then? Probably not. Apache would have needed to evaluate requests for time off or for a modified schedule as a reasonable accommodation request under the ADA. Apache would have had to engage in the interactive process with Mr. Mahn to discuss reasonable, effective accommodations. If time off under the circumstances would have been reasonable, then, yes, Apache would have been obligated to give it to him. In any case, it appears that Apache had intially agreed to a modified schedule, which suggests that a reasonable accommodation was available. We don’t know why Apache stopped accommodating Mr. Mahn, but unless Apache can show that the modified schedule posed an undue hardship (meaning more than just a slight to moderate annoyance, inconvenience or cost) it will have an uphill battle if it argues that no reasonable accommodation was available. Even if the modification was no longer workable, Apache would still have needed to once again engage in the interactive process with Mr. Mahn to see if another reasonable accommodation was available. It does not look like Apache did that here.
What about safety? Doesn’t an employer have a right to fire an employee who falls asleep on the job for safety reasons? Yes, but I doubt that is a factor in this case. I mean, really, is a contract and lease analyst sleeping at his desk a safety risk to himself or others? Not likely.
Bottom line: don’t jump to conclusions! When you notice productivity or similar issues with an employee, talk with your employee first. If you become aware of a potential medical issue, evaluate whether the FMLA, the ADA and any other federal, state or local laws might have something to say about the situation. If you’re not sure, speak with HR, in-house counsel or local employment counsel. OK, enough said. See you next week.
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