An employee who is caught sleeping on the job will usually end up getting fired. Indeed, this is what happened when a night shift employee was caught sleeping numerous times. The employee was given progressive warnings, including a final warning, before getting caught the last time and was fired. This seems pretty straightforward; however, in this case decided by the Seventh Circuit, the facts got in the way, and a jury will decide whether the fired employee has a claim for disability discrimination under the ADA.
Can’t Stay Awake – Warnings and Termination
The employee in this case was an inspector on the night shift. She began to exhibit a pattern of decreased consciousness and alertness, for which she received several disciplinary warnings. She received a Final Warning/Suspension on the day she left her work site to use the restroom and did not return for over twenty minutes. She was later found sleeping in the restroom by a coworker. Then, less than a month later, she was found sleeping again with her head down at her work station. She was given another Final Warning/Suspension so the employer could review her work history and determine if she would be discharged. In the warning notice she was given, the employer ended with this statement: “You were also informed that if you had further information that was relevant to our deliberation, you needed to contact me prior to Monday.” So, the employee brought in a doctor’s statement that indicated her condition was caused by medication, and she had a condition that was a “disability” under the ADA. Nevertheless, the employer decided to take an “aggressive” (their word) approach and proceeded to fire the employee, believing they had engaged in the ADA’s interactive process during the disciplinary meetings.
Is Sleeping on the Job a Disability that Needs to Be Accommodated?
The employee filed suit under the ADA and the FMLA. The lower court granted summary judgment to the employer, reasoning that the employer could not be held accountable for failing to accommodate a condition that both the employee and the employer were unaware of at the time the decision to terminate was made. She appealed and won under the ADA but not under the FMLA. The appeals court sent the case back for a jury trial on the merits. The key to the court’s decision was that the termination decision had not been made before acquiring knowledge of the employee’s disability. According to the court, termination occurs when the employer shows, by acts or words, a clear intention to dispense with the employee’s services. There are two prongs to the test, both of which must be satisfied to fix the date of termination. First, there must be a final, ultimate, non-tentative decision to terminate the employee. Second, the employer must give the employee “unequivocal” notice of their final termination decision. Because of the open-ended statement in the warning notice (“if you had further information relevant to our determination”), it was clear that the decision to terminate had not yet been made before the time the doctor’s statement mentioning her disability was received. The jury will now decide if the employer acted appropriately under the ADA. Interestingly and importantly, her FMLA claim was dismissed because it was not established that at the time of the termination, neither she nor the employer knew that she had a “serious health condition” under the FMLA.
A Wake-Up Call for Employers
This case provides several important lessons for employers.
- An employee begins the accommodation process by notifying her employer of her disability. At that point, an employer’s liability is triggered for failure to provide accommodations.
- After an employee has disclosed that she has a disability, the ADA requires an employer to engage with the employee in an “interactive process” to determine the appropriate accommodation under the circumstances.
- While an employer’s failure to engage in the interactive process alone is not an independent basis for liability, it is actionable if it prevents identification of an appropriate accommodation for a qualified individual.
- The absence of knowledge of the existence of an ADA disability when a termination decision is made is a defense to an ADA claim.
- For that defense to be effective, the decision must be final and must be communicated to the employee.
In this case, the employer may have been better off to immediately terminate the sleepy employee when she was caught.
Reference: Spurling v. C & M Fine Pack, Inc., (Seventh Circuit, No. 13-1708, January 13, 2014).
If you have any questions, please contact Steve Lyman at slyman@hallrender.com or your regular Hall Render attorney.
