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Employee snoozes, employer loses

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Question: Terminations are a legal minefield, but you’d think it would be easy to fire a 911 emergency dispatcher who was found sleeping on the job. Not in today’s lawsuit-happy environment.

A new court ruling from Salem, Ore., highlights the legal risks under the Americans with Disabilities Act (ADA) of terminating employees for performance problems when those problems could potentially be caused by the person’s disability.

In this case, the city fired a long-time dispatcher with sleep apnea for falling asleep at work and other performance issues. While the court admitted that the sleeping on the job is “unacceptable and dangerous behavior” for a 911 dispatcher, the court allowed the employee’s ADA lawsuit to continue. Why? The city may have “classified a symptom of [his] disability as misconduct” when terminating him.

Bottom line: This employee may soon be counting his employers’ money, as well as counting sheep. (Brown v. Salem, D. Ore., 2/27/07)

What does this new ruling mean to you?

In this case, Jon Brown worked for 25 years as a 911 dispatcher for Salem. For the past 15 years, he had suffered from sleep apnea, which caused him to involuntarily fall asleep for short periods of time (so-called “micro-sleeps”). The city’s HR director acknowledged Brown’s condition and even granted him several accommodations, such as removing him from the night shift and putting a fan in his work station (high temperatures can trigger micro-sleeps).

The city terminated Brown after it twice discovered him sleeping on the job. The city also cited several performance problems, including leaving his work station and reading non-work-related materials on the job.

Brown filed an ADA lawsuit and the court sent the case to trial, denying the city’s request for summary judgment. The court said Brown’s micro-sleeps were related to his disability and played a role in the city’s firing decision.

Lesson Learned … Without Going to Court

  • Never mix up performance and disabilities. Employers must be aware to never “ding” an employee based on a disability protected under the ADA. That includes discipline, demotions and termination.

  • Don’t be fooled by a lack of more accommodation requests. The court noted that, although the employee never asked for any additional reasonable accommodations for his sleep-apnea disability (beyond the fan to cool his workstation down), the city was not off the hook because the “disability was over with.” If you continue to see employees struggling with their jobs due to a disability, you must continue the interactive process to identify potential accommodations.

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