We recently had a call from a client asking whether they could terminate an employee who had been caught sleeping during working time in a storage area of their production facility. When confronted about this behavior, the employee stated that they were adjusting to medication prescribed for a neurological disorder and that this was making them drowsy at work. This raised the question of whether an employer must accommodate a worker who can’t stay awake during working hours.
When faced with this situation, employers tend to jump to the Americans with Disabilities Act’s reasonable accommodation/undue hardship requirement. They may argue that allowing an employee to occasionally nod off at work interferes with productivity or presents a threat of injury in a safety sensitive environment. However, the legal analysis of these situations should never reach the question of whether accommodations can be provided.
Under the ADA, in order to be a protected disabled individual, the employee must demonstrate that they are qualified, meaning that they are able to perform the essential functions of the job, with or without accommodations. Is staying awake at work an essential job function? Believe it or not, the EEOC has taken the position that consciousness is not an essential job function. Instead, the agency says that staying awake is a means by which the actual work can be performed, but is not in and of itself a job function.
As you can imagine, the overwhelming number of federal courts that have reviewed this issue have disagreed with the EEOC’s interpretation. They take the position that for most jobs, remaining awake and alert is essential, especially in safety-sensitive positions. Therefore, an employer could conclude that an employee who is not able to remain awake is not qualified and not entitled to consideration of potential accommodations that work around this drowsiness.
These cases do not absolutely shut the door on employers' obligations to employees with sleep apnea, narcolepsy, or other medical conditions that may affect alertness. If an employee discloses such issues in advance and requests temporary leave or a schedule change to adjust to medication or other treatment, the employer should determine if it can accommodate such request. This is legally very different from a situation where the employee falls asleep at work and after the fact attributes their behavior to a previously undisclosed medical condition.
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