ZZZZ… Yes, Staying Awake is an Essential Function of the Job

The Fifth Circuit Court of Appeals recently handed employers an important legal victory with respect to managing employees with disabilities and considering accommodation requests. The well-reasoned opinion provides important reminders to employers and employees alike. 

In Clark v. Champion Nat’l Sec., Inc., the Fifth Circuit upheld the trial court’s dismissal of an employee’s suit alleging disability discrimination and retaliation. George Clark was a personnel manager for Champion National Security, Inc., which provides uniformed security services to other companies. As a manager, Clark was responsible for interviewing, hiring, disciplining and terminating security guards. Clark was also responsible for training security guards on Champion’s policies, including its “alertness policy.” Champion’s alertness policy provided that “[f]ailure to maintain alertness: sleeping or giving the appearance of sleeping at any time while on duty or on the client’s property (including breaks) is considered a terminable offense.” Champion requires a photograph of the non-alert employee and two witness statements to support a termination. Champion testified that because of Clark’s managerial position, it was even more important for him to demonstrate compliance with its policies and model good behavior.

Clark is an insulin-dependent Type II diabetic. During his employment with Champion, he requested and was provided two reasonable accommodations: (1) a refrigerator in his office in which to store insulin; and (2) flexibility to leave work to attend doctor’s appointments. Clark did not request any other accommodations related to diabetes. Clark did request exceptions to Champion’s grooming policy, which requires clean-shaven faces and tucked in shirts, however, the exceptions were denied because Clark did not show the requests were related to his diabetic condition.

In August 2016, another employee told Clark’s manager that Clark had been closing his office door for long periods of time and could be heard snoring. The following month, Clark’s manager received a photo anonymously by text message that showed Clark asleep at his desk. Champion declined to terminate Clark upon this occurrence because using an anonymous picture as sole proof would have deviated from its usual requirement of two witness statements.

In December 2017, however, an employee told Clark’s manager that Clark was asleep at his desk. Clark’s manager then went to Clark’s office, took a picture of him sleeping and immediately sent the picture to corporate management with employee statements corroborating the event. Clark awoke on his own, and his manager informed him that at least two people had witnessed him sleeping on the job. Clark’s manager testified that Clark did not appear to be in distress upon waking. Clark told his manager he thought he might be experiencing a diabetic emergency and was going to the hospital. While at the emergency room, Clark received a phone call from Champion informing him he was terminated for violating the alertness policy.

Clark brought a suit against Champion alleging discrimination and harassment on the basis of disability and failure to accommodate. Both parties filed motions for summary judgment, and the trial court granted Champion’s motion dismissing all of Clark’s claims. The Fifth Circuit upheld the trial court’s decision. Specifically, the Firth Circuit found that Clark presented no direct evidence of discrimination on the basis of disability and Clark was not a “qualified individual” because there was no evidence he could perform an essential function of the job -- staying awake -- with or without an accommodation. The court emphasized the ADA does not insulate an employee from adverse action taken by an employer because of misconduct in the workplace, even if the employee’s improper behavior is arguably attributable to an impairment. The court held that the district court did not err in finding no failure to accommodate Clark’s disability or failure to engage in the interactive process because Clark never proposed an accommodation for diabetes-induced unconsciousness and amnesia that would enable him to do the essential functions of his job. The court acknowledged that what Clark was really seeking was an “after-the-fact, retroactive exception to the alertness policy” as an accommodation for his underlying disability — diabetes -- but stated there is no such accommodation under the ADA. Finally, the court held that there was no evidence of disability-based harassment because Clark failed to show Champion’s refusal to grant exceptions to its grooming policy were in any way based on his diabetes. Clark also failed to show a link between his filing an internal complaint alleging disability-based harassment and Champion’s decision to terminate him, and therefore his retaliation claim failed. The court explained the mere fact that an employer disagrees with or seeks clarification from an employee about the reasonableness or necessity of a requested accommodation does not amount to actionable disability-based harassment or retaliation.

The court’s analysis of this case provides a reminder of a couple best practices for employers:

• Engage in the ADA Interactive Process: An employer must consider whether the accommodation requested is reasonable by engaging in an interactive process with the employee and, when appropriate, the employee’s physician(s). This case demonstrates that it is acceptable for the employer to seek more information from the employee and his medical providers when assessing a request for accommodation. The case also reminds employers that if the request is denied, the employer must articulate particularized reasons why the request is not reasonable.
• Enforce Employment Policies and Disciplinary Actions Uniformly: If an employer points to a violation of its policies to support its legitimate business reason for termination, the employer must also be able to demonstrate it enforces the policy uniformly and indiscriminately. In this case, the employer’s policy was that termination for violation of the alertness policy required a photograph and two witness statements. So, when the manager received an anonymous photo of Clark sleeping in his office, the employer declined to terminate at that time because the incident was not witnessed by two employees and would have been inconsistent with its discipline of other similarly situated employees.

This Fifth Circuit Decision is a welcome one for employers. The court affirmed that consistent enforcement of reasonable disciplinary rules generally does not violate the ADA, and an after-the-fact, retroactive exception to the employer’s policies is not an ADA accommodation. Nevertheless, employers in the Fifth Circuit and beyond should keep in mind there is a duty to engage in the interactive process and offer accommodations to employees who identify a disability and request reasonable accommodations; there are no magic words employees must use to invoke that duty. Also, because courts give deference to employers in determining what constitutes an essential job function, written, up-to-date job descriptions that spell out what is essential will be considered evidence of the essential functions of the job.