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“[M]aintaining Consciousness is a Basic Element of any Job”

By Fiona W. Ong - Shawe Rosenthal LLP

February 5, 2020

And with that obvious (and rather snarky) statement, the U.S. Court of Appeals for the Fifth Circuit made the obvious point that an employee who was asleep or unconscious on the job was unable to perform the essential functions of his job and therefore not qualified for the position under the Americans with Disabilities Act! Now, as my regular readers know, I enjoy a good snark and my blog posts about various court decisions often contain snide comments. But in this case, the (usually quite proper) Fifth Circuit took care of that all on its own…

In Clark v. Champion National Security, Inc., a personnel manager had requested and received several accommodations for his diabetes (specifically, refrigerator space for his insulin and leave for doctor’s appointments). Several times, other employees reported that he was sleeping on the job. His manager then observed him asleep. When he awoke, he stated he had no memory of getting to work. He then went to the hospital because he thought he may have been experiencing a diabetic emergency. Nonetheless, he was terminated for violating the company’s alertness policy. He then filed suit under the Americans with Disabilities Act.

The Fifth Circuit found that the employee was not entitled to the protections of the ADA because he was not qualified for his position. The employee conceded that if he was not awake, he was not alert and could not do his job. The Fifth Circuit rejected the employee’s argument that his sleeping did not pose a direct threat to himself or others, noting that was irrelevant as to whether he was able to perform the essential functions of his job. The Fifth Circuit also rejected his argument that there was no evidence of poor performance, stating that showing was not necessary.  (And here’s where the Fifth Circuit let loose!) It (rather sarcastically) noted that, “Even if [employee] does his job well when he’s awake, by his own admission he cannot do the job at all when he’s asleep.” Continuing to pile on, the Fifth Circuit further commented that the employee could not identify “any accommodation that would have allowed him to perform his job while suffering from diabetes-induced amnesia or unconsciousness – probably because interviewing, hiring, training, disciplining, and terminating security guards requires him to be awake.”  (Ouch!)

Well, apparently the Fifth Circuit enjoys a good snark as much as I do. And ironically, according to lexico.com, apparently the origin of the work “snark” comes from “snore” (as well as “snort” and “find fault”)!  How appropriate!

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