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Sleeping on the job is FMLA protected?

March 9, 2016

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

Generally, if an employee is found sleeping on the job, it is an easy disciplinary issue.  Find out why and decide whether to terminate or not. However, what if the employee has a medical condition—for example, migraine headaches—that could raise it to the level of ADA or FMLA? The case is no longer simple.

Jodi Lasher, who had been a Registered Nurse for over thirty years and was hired to work as a Staff Nurse on the obstetrical floor of Medina Hospital on June 3, 2013. She worked the night shift, from 7:00 p.m. to 7:30 a.m. Among other things, she was responsible for monitoring expectant mothers’ vital signs and contractions as well as babies’ fetal heart rates.

She also suffered from migraines.  She was experiencing more than fifteen headaches in a month and migraine symptoms nearly every day. In addition to pain, Ms. Lasher experienced nausea, dizziness and vertigo. To control the migraines and to improve the quality of her life, she took preventive and abortive medications.

From time to time, Lasher alleged that she would need to report off from work. The hospital followed a “no-fault” attendance policy which assessed points for unscheduled and/or unapproved absences. In February 2014 Ms. Lasher was placed on documented counseling due to her frequent absences. In in June of 2014 she was issued a written warning per the hospital’s discipline policy.

It was also discovered that Lasher would disappear from time to time.  She admitted that, on at least one occasion, she had removed herself from her unit to “rest her eyes.”     

HR and her supervisor met with Lasher to determine what accommodations could be made for the migraines.  Lasher, who would not be eligible for FMLA until June 2014, was granted intermittent leave when she became eligible.  From June 2014 until her termination, she received no discipline and was given positive performance feedback from her supervisor.

On September 21, 2014, Lasher reported for work at 7:00 p.m. and was scheduled to work until 7:30 the next morning. During her shift she experienced symptoms of her migraines, took medication, and saw patients until about 2:00 a.m. when she went to an empty room, sat down and fell asleep. One of her responsibilities was to monitor an unborn baby’s fetal heart monitor which she failed to do for twenty-four minutes while she was sleeping.  Another nurse found her, woke her up, and the night shift supervisor took her to the emergency room for treatment. In the emergency room she did not say that she needed any leave.

The hospital tried to contact Lasher by email, texts and phone from September 23 to 25, and Lasher failed to respond. A meeting finally occurred on September 29th.  Lasher was terminated for sleeping on the job. She appealed the decision internally but it was upheld. She then filed suit alleging FMLA Interference and FMLA Retaliation.

The hospital filed a motion for summary judgement on the FMLA claims. The court said no, holding that Lasher had made a prima facie case; the hospital knew of her condition and fired her because of actions that occurred because of her condition. 

However, the trial court recognized that Lasher’s sleeping on the job was a major infraction of hospital policy when she was responsible for the care of a patient in labor. The trial court also considered other 6th circuit opinions that stated that sleeping on the job is a legitimate, nondiscriminatory basis for termination when the employer has a clearly-established policy.

Lasher then claimed the hospital’s decision was pretextual, i.e., that the hospital was just waiting for the chance to terminate her. The trial court disagreed, saying the hospital held an honest belief as to the basis of decision.

As for the FMLA interference claim, the trial court pointed out that Lasher never gave notice to the hospital that she needed leave.  Lasher failed to respond to calls, emails and texts from the hospital.  In fact, she called off for her September 24th shift but did not mention that she was suffering from her FMLA-related condition.  The trial court held that the hospital could not assume that she was off because of FMLA related condition.  In other words, Lasher failed to give the hospital notice that she needed FMLA time off.

This case is instructive for Michigan HR because this is a 6th Circuit case. Therefore, if there is no policy for sleeping on the job, at minimum it should be listed as a disciplinary offense. Sleeping on the job is a legitimate business-related reason for termination in the 6th Circuit. But it can be complicated by FMLA concerns, particularly if there is a history of FMLA or ADA accommodation. So be sure to consult with legal counsel before taking action.

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