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One of the few constants in the workplace is the prohibition against sleeping. Almost every employee handbook puts “sleeping on the job” near the top of “things that will get you fired.” The 7th U.S. Circuit Court of Appeals’ recent decision in Byrne v. Avon Products, Inc., 328 F.3d 379 (7th Cir. 2003), however, practically puts a cot in every workplace, by finding that sleeping on the job may be effective notice that the employee needs a leave under the Family and Medical Leave Act. SLEEPING AS ABERRANT BEHAVIOR John Byrne started working in 1994 for Avon as an engineer on the night shift. He was, by all accounts, a “highly regarded” employee. That is, until a co-worker reported finding Byrne asleep in the carpenter’s shop, which night employees sometimes used as a break room. Avon reviewed security logs needed to enter the carpenter’s shop and found that Byrne had begun visiting the shop on a regular, and extended, basis. Rather than rush to judgment, Avon installed a camera in the room and found that Byrne was not only sleeping through large parts of his shift, but was also catching up on his reading while on company time. Byrne’s manager sought to have a meeting with him to discuss this behavior. Byrne, however, left work early on the date of the meeting and his family reported to the company that he was “very sick.” Although Byrne spoke with his manager and agreed to a meeting, he did not appear at the scheduled time. At that point, the company fired him, based on his failure to attend the meeting and his sleeping on the job. DIAGNOSED WITH DEPRESSION Byrne was, in fact, suffering from clinical depression and was unable to return to the workplace for approximately two months. When Byrne was ready to return to work, he found that he had no job to return to. He then sued Avon for violations of the Americans with Disabilities Act and the FMLA. The District Court granted summary judgment to Avon on both claims. Byrne appealed. The appellate court initially affirmed the ADA ruling. The court found that Avon had no obligation to provide the type of extended leave of absence that Byrne characterized as an “accommodation.” The court observed that Byrne “contends that he should have been accommodated by being allowed not to work.” This is inconsistent with the ADA’s goal to accommodate employees to allow them to perform the essential functions of their job. “Inability to work for a multi-month period removes a person from the class protected by the ADA.” The court reversed and remanded the lower court’s ruling in favor of Avon on the FMLA claim. The District Court had found that Byrne would have been fired for sleeping and reading on the job regardless of his entitlement to FMLA leave. NOTICE OF A NEED FOR LEAVE OF ABSENCE The 7th Circuit found that Byrne’s sleeping on the job was not a cause for termination, but was, in reality, notice of his need for a leave of absence. This was based on the assertion that Byrne had been a model employee until November 1998 and that his “unusual behavior” was “ itself notice that something had gone medically wrong or, perhaps notice was excused. …” The court explained that “it is not beyond the bounds of reasonableness to treat a dramatic change in behavior as notice of a medical problem.” Examples given included an employee who suffers a heart attack on the job — a situation that would obviously not require the employee to request a leave of absence while being wheeled out on a stretcher. But in Byrne’s case, his reading and sleeping could be easily “confused” with malingering. The court found that a jury could conclude that Byrne’s psychiatric condition prohibited him from giving notice of his need for a leave, citing that portion of the FMLA’s regulations that “it is expected that an employee will give notice to the employer within no more than one or two days of learning of the need for leave except in extraordinary circumstances where such notice is not feasible.” (Emphasis added). Accepting the possibility that Byrne “could not have” told Avon about his problem, he was not required to provide notice of his need for FMLA leave. As such, “instead of treating Byrne’s final two weeks as goldbricking, Avon should have classified this period as medical leave. …” TERMINATION REGARDLESS OF NEED FOR LEAVE MAY BE UNDERMINED This case brings to mind the saying about Sigmund Freud’s theories: “sometimes a cigar is just a cigar.” In this case, sometimes sleeping on the job is, well, sleeping on the job. The fact that Byrne may have been a good, or even “model,” employee before starting to take daily six-hour naps seems a slim thread to hang upon in requiring the employer to discern that this time, sleeping wasn’t really sleeping, but a request for a leave of absence. Furthermore, while the regulations discuss unforeseeable leave, they also contain a provision that the employee “may only state that leave is needed.” The “heart attack” example used by the court does not really apply, since the stricken employee would need a leave to all observers. The sleeping employee, however, would require analysis and medical knowledge likely beyond any reasonable employer. The decision could also create mischief in undermining the employer’s ability to fire employees for performance issues regardless of their need for a leave of absence. It is easy to see employees claiming that their poor workplace behavior was aberrant and, therefore, should have put the employer on notice that it was caused by a medical condition (stress, anyone?). Sidney R. Steinberg is a shareholder in the business law and litigation department of Post & Schell, (www.postschell.com). He concentrates his national litigation and consulting practice in the field of employment and employee relations law and may be reached at [email protected]

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