Suits In The WorkPlace

I seem to be somewhat obsessed with sleeping in the workplace lately, and I’m not sure why.  Here’s one more.  Apparently “unacceptable and dangerous behavior” is not a good enough reason to fire an employee in Oregon any more – at least not if the behavior can be related in any way to a disability.  A federal district court judge recently denied the City of Salem’s motion for summary judgment in a case brought by a former 911 dispatcher employed by the City who was fired for sleeping on the job. (Brown v. City of Salem, No. 04-1541-HA, 2007 WL 671336 (D. Or. Feb. 27, 2007)).     

Jon Brown worked as an emergency dispatcher for the City of Salem for almost 25 years.  Brown was diagnosed with sleep apnea more than 10 years before he was terminated in 2003.  As a result of the sleep apnea, Brown suffered from “micro-sleeps” – involuntarily falling asleep for brief periods of time. (I always thought they were called naps.)  Brown acknowledged that the City was initially cooperative in attempting to reasonably accommodate his condition.  He was excused from night duty and was provided with a fan after his physician indicated that high temperatures in the workplace might trigger the micro-sleeps.  These accommodations failed to completely alleviate Brown’s symptoms, however, and he was ultimately terminated in 2003, at least in part because he fell asleep while on duty. 

Concluding that Brown had presented a prima facie case of disability discrimination under the ADA, the court rejected the City’s motion for summary judgment and ruled that Brown’s claim could proceed to trial.  At issue was whether a causal connection existed between the termination and the disability.  Brown’s managers knew he suffered from sleep apnea when they terminated him, and they recognized that his sleeping on the job might have been related to that disability.  Nevertheless, there were obvious safety concerns relating to a "micro-sleep" happening in the middle of an emergency call.  Noting that “conduct resulting from the disability is considered to be part of the disability and that termination based on that conduct is unlawful,” the court denied the City’s motion for summary judgment.  

This decision takes the protected status associated with a disability pretty far.  The court seems to suggest that any activity caused by a disability is off-limits as a basis for termination.  So if the employee has a mental disability that causes violent behavior, does that mean the employer cannot fire the employee even for workplace violence?  In Oregon, it might.  In Brown, the Court paid some lip service to the City’s “valid concerns about the risks to the public posed by the plaintiff’s continued employment,” but it still didn’t change the outcome.  There is no question the City was focused on Brown’s behavior (i.e., falling asleep), and presumably it would terminate anyone falling asleep in such an important job, regardless of whether it was caused by a disability or not.  Moreover, they tried to accommodate him, but could not.  I do not read the ADA to protect employees who cannot safely perform their essential job functions with a reasonable accommodation, and view this decision as potentially dangerous:  both for employers attempting to address such issues in the workplace, and for people calling 911 in Oregon.

Employers should be especially vigilant in defining and articulating essential job functions, and documenting the risks associated with an employee’s failure to perform such functions.