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  1. #1

    Default Disciple for Falling Asleep on the Job

    My question involves labor and employment law for the state of: Texas
    A notice was given to personnel office that I was sleeping in a meeting at work. As far as I know so far, this is a one time complaint. I told manager my blood pressure medication was causing me to wake up early and affecting my sleep. Personnel office has asked me if I want to request a special accommodation for "being unable to perform essential functions". They emailed me some info from company rules and said employees falling asleep during work could be violating policy. First, let me say, I do not think I was sleeping in this meeting. I do feel drowsy on occasions due to lack of sleep. Drowsiness is also listed as a side affect of the medication. Can someone advise me on how to handle this? Things to do or not to do? Should I just cooperate, or argue that I was not sleeping? Should I submit the form request? (I certainly do not feel I am unable to perform essential job functions). From googling, I see employees can be terminated for this behavior. What is probability that they would terminate me? My work record is very good, a good performer. But I have had a number of issues with this manager. After I complained about being harassed over a trivial issue, manager then turned this notice in.

  2. #2
    Join Date
    Oct 2014
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    8,238

    Default Re: Sleep on Job

    Quote Quoting donaldj
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    What is probability that they would terminate me? My work record is very good, a good performer. But I have had a number of issues with this manager. After I complained about being harassed over a trivial issue, manager then turned this notice in.
    I don't know anything about your employer or your manager's feelings about you and your work. But this is not an issue you simply want to ignore. An employer does not need any good reason to fire you. All that matters is that the reason is not one of the few the law prohibits. The prohibited reasons include firing you because:
    • of your race, color, religion, sex, national origin, citizenship, age, disability, or genetic test information under federal law (some states/localities add a few more categories like sexual orientation);
    • you make certain kinds of reports about the employer to the government or in limited circumstances to specified persons in the employing company itself (known as whistle-blower protection laws);
    • you participate in union organizing activities;
    • you use a right or benefit the law guarantees you (e.g. using leave under FMLA);
    • you filed a bankruptcy petition;
    • your pay was garnished by a single creditor; and
    • you took time off work to attend jury duty (in most states).


    The exact list of prohibited reasons will vary by state. So, the employer may legally fire you for most anything other than the sort of things I listed above. So the employer certainly could legally fire you for falling asleep on the job.

    That said, the issue of you sleeping because of medication taken for high blood pressure does potentially touch on the Americans with Disabilities Act (ADA), the federal law that, among other things, prohibits discrimination by employers against employees because of disability. That is why the employer asked if you needed an accommodation. The employer is not required to ask that (and in some cases asking it might be a problem for the employer). It is generally on the employee to ask for an accommodation if one is needed. If an employee has a disability and the employee needs help to overcome the problems caused by the disability in order to perform the job at the required level then the employer must provide a reasonable accommodation to do that.

    One way or another you need to deal with the drowsiness that the medication causes you. Though you don't think you fell asleep, you might have done so and not realized it. The fact that they raised it as an issue indicates some problem there to address. So start by figuring out what it will take for you to be able to be alert and not drowsy at work. Can you change the times you take the medication so the drowsiness does not occur at work, for example? If what what you need will require some accommodation from the company then you'll want to ask the company for that help. The idea here is that you want to let the company know that you understand their issue and are taking steps to address it. In my experience if the company thinks you are just blowing it off or denying there is an issue that leads to a faster trip out the door. Whether doing all this will save your job in the end, though, is impossible to predict. Only your bosses really know that.

    Trying to address the problem may also help you get unemployment comp if you get fired. Just because the termination is legal doesn't mean you can't get unemployment comp. Generally speaking you need to have committed some kind of misconduct or violation of policy to get denied unemployment when you've been fired. So if you do get fired, promptly apply for those benefits.

  3. #3
    Join Date
    Aug 2013
    Posts
    284

    Default Re: Sleep on Job

    Good answer.

  4. #4

    Default Re: Sleep on Job

    I have no objection to giving information. But, after reading the form, the wording of the form seems to be extremely excessive - "unable to perform essential functions". If it didn't say that strongly, I would gladly fill out the form. It seems I am admitting that I am unable to perform various functions of my job, and that is not true. It seems I would be admitting I can't do much of the job, and give them even more reason to dismiss me. Would I be able to write in the blanks wording such as : " I can perform all functions of my job, but it is possible there may be very infrequent (once per ____) very brief (x seconds) period of drowsiness due to medication? In this type of case, what type of "accommodation" would they provide to me? Allow me to avoid meetings? Allow me to work from home? What is "an accommodation"?

  5. #5
    Join Date
    Oct 2014
    Posts
    8,238

    Default Re: Sleep on Job

    Quote Quoting donaldj
    View Post
    I have no objection to giving information. But, after reading the form, the wording of the form seems to be extremely excessive - "unable to perform essential functions". If it didn't say that strongly, I would gladly fill out the form.
    I understand, and whether to go that route is something you'll have to decide. The company's choice of terms is not accidental. The employer is prohibited from discriminating against a "qualified employee", which is a person "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 USC §12111(8). The ADA then prohibits an employer from "not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 12112(b)(5)(A)(bolding added). Note the part that I bolded: the requirement for reasonable accommodation is turns on helping an otherwise qualified employee; i.e. an employee who would be a qualified employee but for the limitations of his/her disability. Put another way, if the employee is a qualified employee (one that can do the essential functions of his job) without any accommodation then no reasonable accommodation must be provided by the employer. The whole reason for the reasonable accommodation requirement is to help disabled employees overcome those limitations in order to perform the essential functions of their job.

    Put simply, the employer is using the terms from the ADA itself to indicate that a need for reasonable accommodation exists. So to get reasonable accommodation, you effectively have to acknowledge that there are times the disability interferes with your ability to do the essential functions of your job.

  6. #6
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Sleep on Job

    I don't disagree with a thing Tax has said, but I'm going to put it another way for the OP.

    Donald, if you're not comfortable filling out that form, you don't have to. No law is going to force you to. The company cannot require you to.

    But, if you fail to do so, you are in essence saying that you do not need any kind of accommodation to do your job. That means if you fall asleep on the job, if your medication causes you to be drowsy and it starts affecting your performance, you have no protections. By not completing and returning the form, you are acknowledging that you are not disabled in any way, that you are capable of performing all of the essential functions of your position without any accommodation. Thus making your self subject to discipline up to and including termination for any job performance issues even if they are medically based.

    I'm not telling you to complete the form. I'm not telling you not to. You're the only one who knows if you need any kind of accommodation or not. I'm just telling you the consequences if you don't.

  7. #7

    Default Re: Sleep on Job

    Yes, but as I stated above, can I adjust the statement by specifying " I can perform all functions of my job, but it is possible there may be very infrequent (once per ____) very brief (x seconds) period of drowsiness due to medication? ". I think the best option would be to first try a different blood pressure medication.

  8. #8
    Join Date
    Mar 2012
    Posts
    1,360

    Default Re: Sleep on Job

    Staying awake at work is "an essential job function" in my book.

    Do you want to end up like this guy:

    https://www.azcourts.gov/Portals/0/O...080-136463.pdf

    Out of work and no UI all because he didn't tell his employer about the pills he was taking?

  9. #9
    Join Date
    Jun 2006
    Location
    Massachusetts
    Posts
    24,521

    Default Re: Sleep on Job

    You can put anything down that you want to but it's not going to be meaningful. Either you can perform all the essential functions of your job or you can't. Either you have a disability for which you need accommodation or you don't. You don't get a bite out of both apples at once.

  10. #10

    Default Re: Sleep on Job

    I have been looking thru the accomodations. I don't see much that would be workable for my job. Team members are required to be present at certain hours on some days. We already work from home half the time. However, the Nozzer watch does look like it might work. This happens primarily in evening when I am watching TV. My head does not drop or move. I just kind of get in a daze, halfway between asleep and not asleep. Most of the devices depend on your head dropping down.

    Looking further at the Nozzer, it seems to be sold from Kharkiv Ukraine. It seems to be a relatively simple device. Makes me wonder why nobody in US is producing a similar product. I have some question as to whether prolonged use of it would affect the nerves in your wrist and hand.

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