- The ability to maintain consciousness can be an essential job function that need not be removed as a reasonable accommodation for an employee with a disability, the 5th U.S. Circuit Court of Appeals said (Clark v. Champion National Security, Inc., No. 18-11613 (5th Cir., Jan. 14, 2020)).
- Charles Clark, a personnel manager, was fired for allegedly sleeping on the job, in violation of his employer's "alertness policy." He sued, claiming that because the employer knew he had diabetes and went to the hospital following the incident, it should have granted a policy exception as an accommodation. A district court granted summary judgment for the employer and the 5th Circuit affirmed.
- In its ruling, the appeals court said Clark was not a qualified individual as defined by the Americans with Disabilities Act (ADA) because he couldn't meet an essential function of the job — maintaining consciousness — and therefore wasn't entitled to the law's protections. Clark also failed to identify any reasonable accommodation that would have allowed him to perform his job, it said, because his job duties required him to be awake.
The ADA protects qualified individuals with a disability from workplace discrimination and requires that employers provide reasonable accommodation that allow employees to perform the essential functions of their jobs. But, an employee who cannot perform an essential function, either with or without a reasonable accommodation, is not qualified for the job and cannot invoke the ADA's protections, according to the U.S. Equal Employment Opportunity Commission (EEOC).
Because courts often give deference to employers when deciding what constitutes an essential job function, written, up-to-date job descriptions that spell out what is essential and what is marginal are key, according to EEOC's guidance, The ADA: Your Responsibilities as an Employer.
In addition, federal law does not insulate an employee from discipline even if the improper behavior is arguably attributable to an impairment, the Clark court noted. Courts have "repeatedly approved of ADA-challenged discharges for falling asleep at work, particularly in safety-sensitive positions," it said. Employers remain free to take adverse employment actions as long as the decisions are based on legitimate, nondiscriminatory reasons, although experts urge HR to take extra precautions when protected activity is involved.