Following a work injury, the issue of drowsiness may arise
in two cases.
One issue that arises is when a medicated worker returns to
work after a work injury and is fired for sleeping on the job. A claimant who is drowsy because of a medical
condition or medications generally is not engaging in willful misconduct. Each case is decided on individual circumstances,
however. The claimant who hides in a dark corner with an alarm clock, pillow and
blanket may be regarded entirely differently than someone else who nods off briefly because
of required pain killers.
“Employers have a right to expect employees to be conscious
during their scheduled shifts. Sleeping on the job would be a
"conscious" disregard of that standard,” Judge Romines noted in Nickless v St. Gobian Containers, 350 S.W.3d 871 (Mo. Ct. App.
2011). Claimant was not found credible
that he was merely resting his eyes after using eye drops when the claimant was
found in a dark room, sitting in a chair with his head to his chest and eyes
closed and did not respond when the door was slammed. The Western
District, however, has found exceptions based on the totality of the circumstances.
This analysis included
the nature of the employee's job responsibilities, the location where
the employee fell asleep, the employer's policy related to sleeping on the job,
whether prior warnings had been given to the employee, and any other
aggravating or mitigating circumstances.
In Richardson v Div. of Employment Security, 361 S.W.3d 425 (Mo Ct. App.
2011) the claimant was a night shift nurse who napped twice on the same shift
but argued that the employer “made” her work.
Illinois recently addressed a similar issue under 820 ILCS 405/602(A) and concluded that a security guard at O'Hare Airport who was caught sleeping on the job did not engage in willful misconduct to disqualify himself from receiving unemployment benefits. The court noted that the worker was in an upright position which showed less of an intent to fall asleep. A dissent argued that an employer performing security at an airport had a higher expectation of claimant not to return to work when he was tired. Universal Security Corporation v the Department of Employment Security, 2015 Il App. 133886 (Feb. 18, 2015).
These cases underscore the importance of employers before a work injury to highlight the obvious: Employees are expected to stay awake. We really mean it. Any employee who brings pillows, blankets to work may be subject to discipline, including termination. Really.
Illinois recently addressed a similar issue under 820 ILCS 405/602(A) and concluded that a security guard at O'Hare Airport who was caught sleeping on the job did not engage in willful misconduct to disqualify himself from receiving unemployment benefits. The court noted that the worker was in an upright position which showed less of an intent to fall asleep. A dissent argued that an employer performing security at an airport had a higher expectation of claimant not to return to work when he was tired. Universal Security Corporation v the Department of Employment Security, 2015 Il App. 133886 (Feb. 18, 2015).
These cases underscore the importance of employers before a work injury to highlight the obvious: Employees are expected to stay awake. We really mean it. Any employee who brings pillows, blankets to work may be subject to discipline, including termination. Really.
In the second instance, the claimant alleges the desire to
nap renders him or her disabled. The claimant alleges back pain made her sleep on the job and the
claimant was fired for sleeping. Swartz v Nevada
Habitation Center,
2012 Mo. WCLR Lexis 140 (July 12, 2012).
ADA, by contrast, requires a higher standard of proof of a “serious
medical condition” and it must “severely” restrict an individual performing
activity of central importance. In a recent
district decision, the plaintiff failed to prove fatigue was a serious medical
condition to trigger benefits under ADA or FMLA.[1]
More than 1 in 4 Americans
have insomnia or sleep disturbance.[2] Drowsiness
may an unintended consequence of medications, fatigue or simply spending too much
time with lawyers and the court system. The allegation of disability from sleep deprivation requires further attention on a case by case basis.
It can be reasonably assumed most people some of the times aren’t
sleeping well and given a choice would rather have a nice story, a glass of cold
milk, and take a nap rather than finish the work day. If vocational disability is predicated on a desire to
nap then the concept of disability has lost any meaning.
