Termination for Sleeping at Work Upheld

An HR professional could not revive his Americans with Disabilities Act (ADA) claim by arguing that he was not sleeping at work but instead lost consciousness due to diabetes, the 5th U.S. Circuit Court of Appeals ruled.

Champion National Security Inc., a uniformed security services company, hired the plaintiff in October 2015. He was responsible for human resources and employee relations issues at his branch. His duties included interviewing, hiring, training, disciplining and firing security guards.

According to the plaintiff, he suffered from multiple physical and mental ailments prior to and during his employment at Champion. He had been an insulin-dependent Type II diabetic for over a decade. He requested a refrigerator in his office in which to store insulin and increased flexibility to leave work to attend doctor appointments. Champion provided these accommodations throughout his employment.

The plaintiff also requested exceptions to Champion policies. While Champion required employees to be clean-shaven and wear dress shirts tucked into their pants, the plaintiff asked to grow a small beard because he interacted only with fellow employees, not clients. Champion denied his request.

The plaintiff renewed his request about three months later, submitting a note from his doctor stating that he had eczema and dry skin. Champion assented to the request based on the doctor's note, but a senior vice president offered the plaintiff a raise if he complied with the shaving policy. The plaintiff rejected the offer.

The plaintiff also requested an exception to the dress code. He had recently had shoulder surgery and requested that he be permitted to leave his shirt untucked during recovery. He submitted a doctor's note stating that he would have to manipulate his left arm to tuck in his shirt and would thus harm his recovery.

The plaintiff submitted additional documentation and exchanged e-mails with Champion's senior vice president about the company's dress and grooming standards. Based on these interactions, the plaintiff submitted a complaint of harassment with human resources. The HR director investigated and found that the senior vice president did not engage in harassment.

In August 2016, a Champion employee notified the plaintiff's supervisor that the plaintiff was closing his office door for long periods of time and she could hear him snoring. The following month, the supervisor received a picture anonymously by text message that seemed to show the plaintiff asleep at his desk at work.

According to Champion's policy, lack of alertness at work, which includes sleeping or giving the appearance of sleeping, was an immediately terminable offense. Champion did not fire the plaintiff at that time because Champion's usual process of terminating an unalert employee included collecting two witness statements.

On Dec. 7, 2017, an employee saw the plaintiff sleeping at work and notified the supervisor, who took a picture of the plaintiff sleeping. The employee sent management the picture and employee statements corroborating the event. The plaintiff then awoke, and the supervisor told the plaintiff that at least two people saw him sleeping. The plaintiff claimed that he did not remember awaking that morning or coming to work and believed he might have been experiencing a diabetic emergency.

The plaintiff went to the emergency room, but Champion notified him by telephone that he was terminated for violating its alertness policy. The plaintiff claimed he passed out from low blood sugar, but Champion did not change its decision.

The plaintiff filed suit in federal court claiming that Champion fired him because of his condition resulting from a disability. He brought claims under the ADA and the Texas Labor Code alleging discrimination and harassment because of disability, retaliation and failure to accommodate.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

The district court granted Champion's motion for summary judgment and dismissed the claims.

On appeal, the 5th Circuit upheld the dismissal of the plaintiff's claims. The 5th Circuit reasoned that he could not perform the job's essential functions, which required alertness on the job. The appeals court also noted he did not request an accommodation for loss of consciousness due to diabetes.

Clark v. Champion National Security Inc., 5th Cir., No. 18-11613 (March 10, 2020).

Professional Pointer: The ADA requires employers to review their disciplinary policies to make sure that they do not unintentionally discriminate against employees with disabilities. Policies requiring alertness on the job, nonetheless, generally survive judicial scrutiny.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

[Visit SHRM's resource page on the Americans with Disabilities Act.]

Provide input as the DOL develops further guidance on the FFCRA. Participate online at https://ffcra.ideascale.com through April 10—an extended deadline.