You have observed an employee sleeping on the job on multiple occasions, and now you have decided enough is enough. It’s time to part ways and give him all the sleep time he needs. Sounds like a very legitimate reason to separate employment, but the ADA could make that a very costly decision…
Ross Dudney
Risk Control Services Director
tcormanagement.com
Slumbering cop takes home million-dollar jury verdict based on ADA claim
Bradley Arant Boult Cummings LLP
Anne Knox Averitt
USA
December 5 2014
The City of McPherson, Kansas was recently hit for almost $1 million in damages when a jury sided with a plaintiff police officer who claimed he was wrongfully terminated for falling asleep on duty. Matthew Michaels, who worked as a McPherson police officer for almost a decade, alleged the city violated his civil rights under the American Disabilities Act. He claimed that his sleep apnea was a disability that resulted in his dismissal in violation of the ADA. The jury apparently agreed, awarding him nearly $800,000 for lost wages and another $120,000 for emotional distress.
Michaels was suspended in 2010 after he was found sleeping in his patrol car on several occasions. He was subsequently diagnosed with severe sleep apnea and received medical treatment. Though he no longer snoozed on the job once his sleep apnea was treated, Michaels’ performance issues continued. Several years later, the city fired him for performance problems unrelated to his sleep issues, including insubordination and arguing with superiors. His boss made a crucial mistake, however, by referencing the prior incidents of sleeping on the job in his termination memo.
A medical diagnosis should not factor into reasons for termination unless the employee is completely unable to perform the essential job duties, even with a reasonable accommodation. Michaels had no further sleep issues once he received treatment, so his supervisor had no reason to mention those issues with respect to the termination decision.
That being said, employers are permitted to address an employee’s behavior or performance issue, regardless of the cause. If a consistently tardy employee, for example, attributes his tardiness to his sleep apnea or some other potential disability, his employer should look for a reasonable accommodation rather than simply permitting the tardiness.
