By Carolyn A. Pellegrini
This picture was recently circulated to among the bloggers with a challenge: turn this picture into a blog entry.
After dispelling all rumors that the picture was of me (obviously I would not perpetrate the fire hazard that the power strip in the background is creating), I decided to accept the challenge.
To most employers, the response to the picture is easy: “You’re fired!” But that doesn’t make for a good blog post, and it certainly doesn’t make sense under the employment laws.
Taking it step by step
First, the employer should examine whether other employees have been observed sleeping on the job.
If the employee in our picture is not the first to count sheep at work, the employer should treat the pictured employee the same way it treated the other nappers. For example, if past nappers received written reprimands rather than termination, our sleeper should also receive a written reprimand.
Next, the employer needs to meet with the employee to ensure there’s no underlying disability.
Let’s assume that the employer learns that the employee suffers from narcolepsy. It is highly likely that narcolepsy is a disability and, if the employee can perform her job with or without a reasonable accommodation for her narcolepsy, she is protected under the Americans With Disabilities Act (ADA). If that is the case, then the employer should not fire her and should engage in the interactive process to determine how to reasonably accommodate her disability.
Let’s now assume that during a meeting with the employer, Sleeping Beauty reveals that she was sleeping on the job because she was hung over and is an alcoholic. What now?
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The keys: consistency, communication
‘Alcoholism is often considered a disability under the ADA, meaning the employee has a right to a reasonable accommodation and the employer has the obligation to provide one. The ADA states, however, that an employer may hold an employee who is an alcoholic to the same standards to which it holds other employees.
Simply stated, we’re back to our original analysis: How has the employer disciplined employees for similar misconduct in the past?
The take-away is this: consistency and communication. Employers need to address misconduct in a consistent manner – similar crimes should result in similar punishment.
Employers also need to communicate with their employees – by having a simple conversation, employers may find out important information that could help them avoid an ADA claim.
This was originally published on Montgomery McCracken’s Employment Law Matters blog.