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When is it illegal to fire someone for sleeping on the job?

by on
in Discrimination and Harassment,Human Resources

Some disabilities require the use of medications with side effects. If one of those is sleepiness and fatigue, employers may have to accommodate those side effects.

That’s why it is crucial for you to begin the interactive process as soon as you learn that an employee is having trouble because of the medication he she uses. The worst thing you can do is to simply terminate the employee because he nodded off.

Of course, there are situations in which there is no way to accommodate sleepiness. For example, you can’t have a heavy machine operator nod off while moving equipment or a surgeon doze in the middle of an operation. But in other situations, it may be quite possible to make accommodations.

Recent case: James Halsey, who is gay and has HIV, went to work for JP Morgan Chase as an account executive in the home equity division. He didn’t disclose his HIV status at the beginning of his employment.

Then Halsey went to a training program with his supervisors and co-workers. His boss praised him for the way he handled a training exercise and invited him to come along to dinner that evening at a Hard Rock Café restaurant. Then the supervisor noticed that during a training session, Halsey appeared to be nodding off. The supervisor asked him if there was a problem, and Halsey said he was jet-lagged.

Later that day, it occurred to Halsey that he might have fallen asleep because of the many medications he takes to manage HIV. He e-mailed his supervisor, explaining the situation and revealing his medical status for the first time.

When it was time that evening for everyone to meet in the hotel lobby before dinner, Halsey arrived to find himself alone. He called his boss and another co-worker, only to get their voice mail. Then he went to the Hard Rock Café, but the group wasn’t there. Instead, it turned out they had been told to turn their cell phones off and gather at a different restaurant.

A few days later, Halsey was fired, ostensibly for sleeping on the job.

He sued, alleging disability discrimination and failure to accommodate.

The bank argued that it wasn’t obligated to put up with sleeping on the job even if a disability might contribute to sleepiness.

The court disagreed and ruled that Halsey’s lawsuit should continue. It said each case must be considered on its own merits. While those in highly safety-sensitive jobs may pose a real risk if they fall asleep or are less than fully alert, the same isn’t true for desk jobs. Therefore, the bank should have considered whether it could accommodate occasional sleepiness due to medications or an underlying medical condition. (Halsey v. JP Morgan Chase Bank, No. 08-01335, ND CA, 2009)

Final note: Imagine how a jury will view this case when it goes to trial. Ostracizing someone with HIV won’t play well. The image of an HIV positive employee standing alone in the lobby looking for his co-workers who are off elsewhere enjoying dinner is powerful.

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