Napping employee wants job back
March 11, 2009 by Sam NarisiPosted in: Employees do the strangest things, Here comes the judge, In this week's e-newsletter, Latest News & Views
Would your company think twice about firing an employee who was repeatedly caught sleeping at her desk? According to one recent court case, you should.
While working at the North Carolina Department of Transportation, Elsie Hinton was warned by her boss four times about napping during work hours.
The fifth time she was caught, she got fired.
Now she’s filing a complaint demanding the DOT reinstate her, the Charlotte Observer reports.
Hinton says she suffers from sleep apnea, which prevents her from getting continual rest at night. She uses medical equipment to help her sleep, but claims it had been malfunctioning.
The DOT maintains it shouldn’t have to use taxpayer money to pay an employee to sleep.
Does Hinton have a case?
Maybe. Some courts have agreed that sleep apnea is a disability as defined by the Americans with Disabilities Act, and that allowing periodic rest breaks could be a reasonable accommodation for employees in some positions.
What do you think about the outcome of this case? Let us know in the comments section below.
Tags: firing, napping, sleep apnea
March 11th, 2009 at 9:09 am
Did she explain her situation or ask for reasonable accommodation at any point in the discipline process? Yes, I can absolutely see how a court could consider sleep apnea as a disability under the ADA, but to say nothing during her employment and then come back with a claim after termination seems fishy to me.
March 12th, 2009 at 7:59 am
I agree with JVN. If the employee wants to claim a disability, then it is her responsibility to request an accommodation. The employer is not required to volunteer that option and it doesn’t look (from the brief article) that they treated her as disabled. Their decision should stand.
March 12th, 2009 at 8:21 am
[...] Napping employee wants job back | HRBlunders.com | The worst … By Sam Narisi Documentation not enough: Mouthy manager lands company in court · Supervisor aked for evidence of harassment — alleged victim sues · Employees on FMLA claim they’re owed more paid sick days · Diabetic can sue under ADA … HRBlunders.com – http://www.hrblunders.com/ [...]
March 13th, 2009 at 8:48 am
If she has sleep apnea, she should have revealed that one of the first four times she was caught sleeping.
March 13th, 2009 at 10:17 am
Why was this disability not revealed to her superiors prior to being fired? If she wants to play the disability card then she should have informed her superiors that she had one. I don’t think this person should be granted anything after the fact; I do, however, agree that if she did inform her superiors prior to her termination that they would need to accomodate her sleep apnea by providing her with a couple extra breaks. It is not the responsibility or the risk for the employer to assume that someone has a disability.
March 13th, 2009 at 10:21 am
We have this situation now. The employee has an intermittent leave in place. After she was recently caught sleeping at her desk, she was told that she can use her breaktime to nap in the breakroom, or she should go home for the day if she can’t stay awake.
March 13th, 2009 at 10:35 am
Another government lackey gets caught and then tries to blame it on something else. Her “disability” only became known after the fact. I’m surprised she didn’t file a suit after the supervisor admonished her on the first instance.
March 13th, 2009 at 10:53 am
My husband has sleep apnea as well but he doesn’t nap on the job. It has never caused him to just fall asleep. He has an C-pap machine he uses at night but even if he doesn’t use it the only problem he has is he didn’t sleep well. He still doesn’t nap during the day like that. This sounds a little fishy to me. (Maybe I should inform him he has a disablity and he can take a nap in the middle of the day too!)
March 13th, 2009 at 11:10 am
We have an employee with sleep apnea and he takes medication which keeps him from falling asleep. Sounds like this person is just looking for an excuse. I agree with everyone, she should have made this condition known when she was hired, not after she was fired.
March 13th, 2009 at 11:42 am
I have to agree with comments above, this sounds fishy. My question would be was she warned four times in one day or were the warnings over a period of days/ weeks? Did the supervisor discuss with Human Resource rep prior to firing the employee?
March 13th, 2009 at 11:50 am
If the naps were during scheduled break-times, that might be OK (as OK as smoking, for example). If she was asleep when she was supposed to be working, that would be a performance and safety issue – unless a schedule of “accommodating” nap times had been established.
March 13th, 2009 at 12:55 pm
Folks, you don’t have to accomodate anything if the disability has never been brought up before – i.e., no disability has been established requiring an accomodation under ADA. The “condition” was only discussed after she was fired.
If I have a protected disability, I’m going to mention it to my boss if I get reprimanded for its manifestation the first time it occurs, not after they fire me.
March 13th, 2009 at 1:54 pm
What’s not clear from the report is whether or not the napping caused a performance issue. If she’s taking 10 minute cat naps and its not affecting her performance, I don’t see the big deal. If, on the other hand, she’s at a desk and interacts with the public, and THEY are the one’s affected, its a different story.
March 13th, 2009 at 2:11 pm
Agree with LEU, seems like the disability was disclosed post termination. Very suspicious….
March 13th, 2009 at 2:14 pm
Last I checked, sleep apnea is not narcolepsy, although I think that at least in some cases they are related. It really isn’t an excuse. If given notification, I’m sure the supervisor could have accommodated her by having her come in a little earlier, given longer breaks for naps, and still expected the employee to complete the work, or something along those lines.
I personally had sleep apnea until I had a U3P operation. It never kept me from working all day, although it did make me tired.
March 13th, 2009 at 2:29 pm
This is just another example of how ridiculous things have gotten and how protected some people feel they are. It is craziness. This person has been occupying a spot in a company that someone who really and truly wants to work and needs a job should have been.
March 13th, 2009 at 2:48 pm
As a person who has been diagnosed with Narcolepsy, Sleep Apnea and Restless Leg Syndrome, I can relate to falling asleep(while taking medication) even while in the middle of concentrating on a task. I, however, did disclose my medical conditions and ask for an accomodation before the company turned it into a “performance” issue ultimately resulting in my termination. Even if the condition was disclosed, that does not guarantee the employer truly understands or empathizes with something that they do not suffer from and are quick to label someone lazy or unmotivated. I would suggest employers educate themselves and research sleep disorders to be able to discern what is a medical issue from a performance issue.
Also, “coming in a little earlier” for someone who feels more tired when they wake up than when they went to sleep isn’t always a viable or safe option. While acknowledged as a disability, Social Security will not pay benefits since you can work for short periods without interupption. It is a difficult position for the employee to be in as well.
March 13th, 2009 at 2:54 pm
Let mer tell all of you something. I have been released 2 times for a disability. Once you reveal or “they – the company” find out that you have a disability that costs money and could possibly cost them more money (especially if they are self insured), inevitably leads to your demise. I am living proof. Don’t judge to quick until you walk in someone elses shoes. I have worked for 24 years in the accounting arena and thought that I “trusted” people with sensitive information as far as management and HR goes and let me tell you – I don’t anymore. I am a loyal hard working 60-70 hour per week employee and I advise you to NEVER reveal anything more than what you have to.
March 13th, 2009 at 3:18 pm
A Sleepy –
I am sorry things turned out that way for you, but I have also been on the terminating side of a similar situation. We hit a point where what would have been necessary to accommodate the condition (epilepsy, not a sleep disorder) was no longer reasonable, or really even possible, if we were going to continue to run our business safely and effectively.
We ended up terminating, but I felt horrible about it and my heart broke for the employee. I still think about the employee often and hope he was able to get some type of retraining that would allow him to find work in a field where his condition is not a barrier to safe successful employment. Trust me termination is not always the result of a lack of empathy.
March 13th, 2009 at 4:20 pm
If sleeping beauty requires a medical device or medicine to sleep it is incumbent upon her to use them. It was only after her equipment failed that the problem manifested itself at work (and she had been “caught” several times). It is not her employers resonsibility to maintain her medical equipment or make sure she takes her medicines. Getting proper rest is a personal responsibility. Even when “hours of service” regulations apply, noone can make an individual sleep. I would consider this a performance issue and discipline appropriately. Up until now I have never included “must stay awake” as part of the physical requirements listed in my job descriptions.
March 13th, 2009 at 4:51 pm
In our state, at least on a UC perspective, it can be considered willful misconduct to be sleeping on the job, unless it can be shown that the claimant had justification, ie an event happened and they were fatigued, but not something ongoing like this. 4 incidences? So long as they are separate incidences, like on different days, I hope this case gets thrown out.
March 13th, 2009 at 5:12 pm
I agree with Ross
March 13th, 2009 at 5:16 pm
Julie, what you say is partially true. It is never wise to tell everything until you have to. If it protects YOUR rights, you are under obligation to report something such as a sleeping disorder or any condition that can be considered a disability. USUALLY, though, you are asked up front, if there are any problems which would prevent you from performing the job you are applying for to the best of your ability. If you answer no, and really do have a problem, then you are un-protecting yourself. If things get to the point where it gets to be a known problem, then you almost cannot legitimatly defend yourself.
March 14th, 2009 at 3:21 am
I think most agree that the employee had an obligation to report the disability to the employer prior to termination, but once the lawsuit is filed, the employer is immediately faced with legal fees to respond to and defend their position. Too often terminated employees assume the employer will settle for a monetary amount rather than spend thousands in legal fees to fight it. The laws need to be more rigid to deter terminated employees from filing a frivolous suit.
March 16th, 2009 at 12:06 pm
I still have to disagree to a certain extent about revealing your disabilities in so much as – As long as your disability does not affect your work performance, and no accomodations needed at the present time, in my opinion you do not have to reveal anything!!!!!!!! The reason for my dismissals were due to the extremely high costs associated with treating Multiple Sclerosis. You would not know that I suffer from this disease unless you were close to me. The companies that are self insured know exactly what it is costing them due to high insurance claims. Believe me, I know from working in the accounting field. Please try to force the HR departments to somehow keep ALL Health information excludable from individuals seeking to “increase” their bottom line. YOu can not convince me otherwise – because I have lived through this twice.
March 16th, 2009 at 12:17 pm
Hi Julie, one word- “HIPAA”. Seriously though, it is as a need to know basis.
Employer has every right to say “you tell us if you need something to do your job, because if you don’t do your job you’re fired”. They need the work done, because if it’s not done then it’s a burden. That’s the basics, but everything beyond that like STD claims and LTD get complicated and a little too much.
March 17th, 2009 at 11:55 am
Ross,
With all do respect. HIPAA really means nothing to those that chose to boost the bottom line versus going belly up.. I do not trust much anyone anymore. I know for a fact what happened to me in those prior jobs and I really resent it. I never really much thought about all of the hardships associated with having a disability, until it happended to me ( and I know that goes for a LOT of people). Government regulations only mean something to those that are morally responsible (Good luck finding some of those). For instance, look what AIG did again – even with the way the economy is – ( Just let the taxpayers pay for these thieves bonuses). Unbelievable. Money is the root of al evil and believe me I speak from experience. I wish that it were not that way, but it is. THe business world is quite a currupt environment and I hope that none of you try and persuade my opinion because it will do you no good. I have lived this nightmare one day at a time. I ask that for any of you that are in a sensitive position; please guard your employees information.
March 17th, 2009 at 2:57 pm
JULie, I appreciate your open mindedness. Perhaps you have been looking for work in the wrong places all these years. You sound perfect for the government. It looks like there may be an opening in the North Carolina Department of Transportation! Good Luck!
March 17th, 2009 at 3:33 pm
Jim Lyttle,
Your closemindedness, insensitivity and sarcasm speaks volumes and perfectly displays what people who have LEGITIMATE health problems are faced with on a daily basis! Unfortunately, there are people out there who make excuses to cover their poor performance. However, there are suffering people who expend twice the energy as a healthy person to get their job done, along with the added stress of trying to stay competitive while being called “sleeping beauty”, as you put it, around the water cooler. I disclosed copies of all of my test results, had my doctor write a letter to my employer and even had a prescription for two 15 minute naps a day (which weren’t abused or always taken). Despite doing all the correct sleep patterns, medicine, documentation, etc., my health problems persisted as did the ignorance and added physical stress. I can’t speak for the DOT worker, but you shouldn’t generalize and kharma comes around and you never know when you’ll find yourself in a medical situation that you didn’t see coming.
Recommended viewing: MTV aired a documentary a few weeks ago called “I can’t sleep” which quite accurately shows what it’s like to live with severe excessive daytime sleepiness (EDS). Like I said before, educate yourself in order to make a fair judgement as to the employee’s behavior.
March 17th, 2009 at 4:46 pm
Personally, I think that the ADA is a little unfair to the employer. Sure, there are instances, when disabilities, (vision, hearing loss, etc) can be a hinderance to a person’s job and there could be allowances made to accomodate these and other disabilities that do not vary into the extreme (sleeping during the day). Maybe this sounds a little harsh, but I work in HR for a hospital and for a lot of businesses these days, night work is an alternative. THAT is an accomodation that would benefit both the employer and the employee…. I have extremely bad insomnia, but I have to come to work and FORCE myself to stay awake and stay focused. It would be soooo much easier if there were allowances for HR work at night. Maybe finding a job with nighttime hours would be a better solution?? It is very difficult for others to have to pick up the slack from one person who is not pulling their weight for a problem everyone did not get to vote on accomodating.
The person who takes two 15 minute naps does not pose any more problems that the smokers who get to take those 10 minutes breaks on the hour…… You guessed it, I am not a smoker and I resent the ones who get to go out and smoke all during the day regardless of what is going on. Another subject entirely.
March 18th, 2009 at 12:51 pm
The key word that so often gets left out of the debate about accommodation is “reasonable”. It needs to be a REASONABLE accommodation – one that doesn’t pose an undue burden on the operation fo the business.
Of course the company is in it for the money. Unless you’re working for a non-profit or the government, your employer’s prime objective is to make money. That’s what businesses do. A responsible business, particularly one that is interested in retaining good people, will make every effort to supply a great work environment along the way, but you are VERY naive if you think that businesses are out for anything other than a profit.
I can’t speak to what would or wouldn’t be a resonable accommodation for sleep disorders or MS. Thankfully, I have never had either condition. I’ve also never been asked to accommodate either condition. I have been asked to accommodate things that we could not reasonably do and still operate our business. Even though the employee making the request is only concerned with their situation (understandably), the employer needs to look at the bigger picture. Remember, whatever accommodation an employer makes for you, they need to be prepared to offer to any other similarly situated folks at any time in the future. Whatever productivity is lost due to an accommodation needs to be made up somewhere else, by someone else.
There is some responsibility on individuals to seek out work that they are legitimately able to do. I personally know two people who work in professional capacities (one lawyer, one bookkeeper/accountant) who work from home and are only accountable to get a certain amount of work done by certain deadlines. It doesn’t matter if they work part of the traditional workday and then sleep or watch TV or whatever for the rest of the day and then finish up work from 9-midnight. They have found jobs that don’t require 8 straight hours of unbroken concentration. It is “do-able”.
The obligation is not the employer’s alone. Anyone who thinks it is, is suffering from a terrible case of entitlement mentality.
March 18th, 2009 at 1:09 pm
JVN, you said it the best. Thank you!
March 18th, 2009 at 4:01 pm
JVN I so agree!! I do have “fellow feelings” for those who are not 100%, but who is 100% ALL of the time? But, when you agree to do a job, you should be able to fulfill the obligation, plus some, if necessary. I do not believe that giving less than 100% is fair to anyone. Even when employees come to work a little under the weather, most are willing to do their share. And if they are, then the others are more than willing to pick up the slack when they really are not able to. But, to ask that everyone else make allowances for someone is not only unfair, it hurts morale. And JVN is right when stating that whatever accommodation is made now, it will set a precedent for the future. HR has to be so careful in being consistent, fair and still HUMAN…..
March 18th, 2009 at 4:35 pm
Debbie, Ross, & all,
It really surprises me to see that you would actually think that after I state I have always given more than 100%. I have a masters in accounting and graduated with honors, and obviously I know that businesses are in it for profit (any 3rd grader knows this). For you to insinuate otherwise demonstrates to me that you are living in a fantasy workplace. This happens quite frequently and the sooner that the HR dept. in businesses take the bull by the horns and try to help innocent employees the better off we all would be.
This is my final remark. As for those that have labeled me less than 100%, you should be ashamed of yourself. YOu have no idea how hard I have worked and the accomplishments that I have made which benefited corporations and also myself. My efforts will benefit other businesses that actually have moral standards and will appreciate my efforts and accomplishments.
I do hope for some of you that you learn from what I have stated.
Have a great day!!
March 19th, 2009 at 9:30 am
Oh my goodness!!! I for sure did not intend that remark for YOU. There were more issues here than yours. I was speaking in generalities only. Please do not think that I would EVER direct that at you, someone I do not know personally, especially your work habits!!! I trust that everything you said on this board to be the truth – I feel for you that you have gotten a rotten deal for the years of service you have put into the workplace. I, and most, if not all of the others who posted here, were speaking for companies in general. And sad to say, when you are in HR, you are trying your best to be fair to each and every employee while at the same time, knowing that you HAVE to please the CEO and CFO first and foremost. I have been in heated debates with higher-ups over things I felt were unfair to employees in other companies I have worked with. I am legally blind, and was diagnosed with MS myself years ago. Fortunately for me, the MS diagnosis was a mis-diagnosis, but I know from first hand experience that I have had to do work harder than most since my vision is 20/400 – and can be corrected to only 20/100 with glasses. It is very difficult and I would never, ever dis another person for a disability. I was only stating facts. Please accept my apology.
March 20th, 2009 at 11:03 am
Debbie,
I certainly did not mean to lash out at you. I am merely trying to stress the point that sometimes things are not what they appear to be. I appreciate your response, I REALLY DO!!!! I just wish that everyone would do the right thing. I would also like to stress that HR people from the bottom up need to be educated that honesty is the only way. I feel that you can still be honest and please top executives.
Times are tough right now and probably always will be in our lifetime, but that does not mean punishing honest hard working people should have to suffer.
Thanks for your time and please do not take offense to any of my remarks. I am only venting and trying to vent in a forum that will reach the appropriate individuals.
Hope all things go well for you and thanks for your time!!!!!!!!!
Julie
March 24th, 2009 at 6:21 am
Sleep Apnea is truly misunderstood. Even if you are someone who suffers from insomnia. The type of oxygen deprivation you experience is life threatening. Until you walk in someone’s shoes or live with someone who suffers from this … don’t judge. My husband was terminated while he was being seen by a sleep specialist. He proactively told his employer what he was going through. He told him how his sleep study went. Two days later he was “caught” sleeping. He was not sleeping. Dozing is more like it. Regardless, he has a medical condition that causes narcolepsy. He is now treated with a CPAP and has no more symptoms. If his employer would have given him 2 more weeks to obtain his machine, he would not be appealing UI and searching for a job and fighting to save our house in this economy. Everyone should think before they speak!