I fell asleep at work because I have sleep apnea. Can they fire me?

I was terminated after falling asleep at my desk. I told my supervisor I have sleep apena. I was still terminated even after giving HR a doctor’s note and a copy of a letter stating my illness. Was this fair??

Posted 02-09-2012

Ann Kiernan replies:

Being fired because of a disability may not be fair, but employers don’t have to be fair. What they do have to be is compliant with the law, which requires that employers make reasonable accommodations for qualified disabled employees and applicants.

Did you or your doctor ask your employer for any accommodations for your sleep apnea, such as a different starting time, increased lighting, or a doze alert? Employers are supposed to discuss requested accommodations with an employee, and to try to reach agreement on an effective reasonable accommodation. You can look for ideas at the Job Accommodation Network website.

But if you never asked for an accommodation, and were fired for misconduct, it may be too late now. Misconduct, even if caused by a disability, is not protected and it is not discrimination to hold a disabled employee responsible for misconduct. See, for example, Little v. FBI, 1 F.3d 255, 259 (4th Cir. 1993), where the court found no illegal discrimination for firing an alcoholic employee for disability-related intoxication on duty. More to the point, courts have repeatedly approved of ADA-challenged discharges for falling asleep at work, particularly in safety-sensitive positions. See, for example, Grubb v. Southwest Airlines, 296 Fed. Appx. 383, 388 (5th Cir.2008) (flight instructor);Leonberger v. Martin Marietta Materials, Inc., 231 F.3d 396, 399 (7th Cir. 2000) (heavy equipment operator in a quarry).

So, I urge you to consult with a local employment lawyer to figure out your rights, and to work with your doctor to come up with the best accommodations for your sleep apnea. Good luck.

 

Information here is correct at the time it is posted. Case decisions cited here may be reversed. Please do not rely on this information without consulting an attorney first.

2016-11-18T16:00:40+00:00

About the Author:

Ann Kiernan has litigated claims of wrongful discharge and discrimination before state and federal courts and administrative matters before the New Jersey Division on Civil Rights, the National Labor Relations Board and the Equal Opportunity Employment Commission, representing both employers and employees. Ms. Kiernan co-hosted The Employee Rights Forum, a weekly radio call-in show reaching up to a half-million listeners in the New York metropolitan area, and her articles on employment law have been published in many books and magazines. Both as a firm partner and as a director, Ms. Kiernan gained solid experience in management and human resources compliance. She has worked with Fair Measures since 1997.