Home HR Blog disabilities/ADA No, you can't sleep on the job No, you can't sleep on the job Shelby Skeabeck, formerly of Shawe Rosenthal August 1st, 2018 This blog was written by Shelby Skeabeck, formerly of Shawe Rosenthal, author of our Maryland Human Resources Manual. You can find the original blog post here and their Labor & Employment Report newsletter (which is excellent) here. No, You Can’t Sleep on the Job, Especially when it’s a Matter of Life or Death! As an employment attorney, I deal with new issues nearly every day. But, there’s one issue that seems to come up on a regular basis. It involves employers asking for advice about terminating employees who have violated work rules but also have engaged in legally protected activities, such as taking leave under the FMLA. Employers are often hesitant to terminate such employees for bad behavior out of fear of being accused of violating the law. A case out of the Eastern District of Pennsylvania (Arana v. Temple University Health System) from last week provides support to employers that discipline and even terminate employees for violating workrules put in place for safety purposes. The employee in the case worked at a twenty-four hour call center at a health system. She was the gatekeeper for sending and receiving some pretty important calls, including emergency calls for urgent patient care or security issues. Suffice it to say, her job was, as the court noted, “extremely significant.” Indeed, being present at her station to answer calls could literally be the difference between life and death! The employee suffered from migraines, which made her sensitive to lights and computers, and she also had diabetes. She was granted FMLA for these conditions. Throughout her employment, she was disciplined several times for her failure to follow protocols on handling calls. She had even been issued a final written warning and a one-day suspension. Right before her termination, her supervisor noticed that she wasn’t returning from her break in a timely fashion, so he counseled her about that. Days later, the employee failed to timely return from break again, so the supervisor went looking for her and found her in the break room, “slumped” down in a conference room chair, under a blanket, with the lights off. There was a disagreement between the parties as to whether the employee was actually sleeping when the supervisor found her. (But that certainly sounds like sleeping to me). The hospital had a policy that identified job abandonment and unauthorized sleeping on duty as infractions that could result in immediate termination. The employee was terminated on those bases. The employee argued that she wasn’t sleeping, but the court found that whether she was actually sleeping or not wasn’t material for two reasons. First, she was terminated not just for being asleep, but also for being away from her post (i.e. for job abandonment). It was undisputed that her supervisor found her in the break room during a time that she was supposed to be at her work station receiving calls. Second, an employer does not have to be correct, so long as an employer has an honest belief that an employee violated a company policy. The supervisor observed what he reasonably believed to be the employee sleeping (slumped down in that break room chair, under a blanket, with the lights off); therefore, the discharge was legitimate and non-discriminatory. This is a great case for employers because it reaffirms that an employer may terminate an employee for violating company policies even where the employee has a legally protected condition. So long as employers consistently apply conduct rules to all, employers should feel confident in making discipline or termination decisions when they honestly believe that there has been a violation of a policy.