The Fifth Circuit recently affirmed summary judgment against an employee caught sleeping at his desk. A personnel manager for a security company suffered from Type II diabetes and had previously requested and received reasonable accommodations, but none involved the employee’s potential loss of consciousness due to diabetes. After two reports of the employee sleeping at his desk, his supervisor took a photograph of him sleeping again. When the employee awoke, his supervisor confronted him. The employee claimed that he may have experienced a diabetic emergency and immediately drove himself to the hospital. While in the emergency room, the company discharged the employee for violating its policy of requiring employees to remain “alert” at work. The employee filed suit alleging claims of disability discrimination, failure to accommodate, harassment, and retaliation. The district court granted summary judgment for the employer on all counts, and the Fifth Circuit affirmed.

The employee alleged, in part, that the company never gave him an opportunity to request a reasonable accommodation for his loss of consciousness because the company discharged him while he was at the hospital. The Fifth Circuit ruled the employee could have (but did not) request an accommodation any time before his discharge, but that “an after-the-fact, retroactive exception to the alertness policy as an accommodation for his underlying disability” would not constitute an accommodation.

Employees’ after-the-fact, disability-related, excuses for misconduct are commonplace. This court’s approach to that tactic…not so much. Kids, don’t try this at home. The optics of firing an employee while she or he is in the ER are, well, awful, and could give rise to other claims even if not under the ADA. However, here, the employer had an express, written “Alertness” policy that it had previously enforced on the same kind of evidence – a photo of the sleeping employee. It doesn’t hurt to have a written policy to rely on when defending an employment decision.

Clark v. Champion National Sec, Inc., No. 18-11613 (5th Cir. Jan. 14, 2020).

(Link to the opinion: http://www.ca5.uscourts.gov/opinions/pub/18/18-11613-CV0.pdf)