Intermittent FMLA Does Not Permit Sleeping on the Job (Usually)

Let’s say you have an employee approved for intermittent FMLA for migraine headaches. Let’s also say co-workers of said employees find her asleep at work during her shift. When you fire the sleeping, migraine suffering employee, do you have potential worries under the FMLA?

According to Lasher v. Medina Hops. (N.D. Ohio 2/5/16), the answer is a resounding “no”. The issue, however, is not as cut-and-dry as this case makes it seem.

On the FMLA retaliation claim, the court concluded that the employer had a legitimate non-discriminatory reason for the termination (sleeping on-the-job), and that there existed no evidence of pretext.

The Sixth Circuit has determined that sleeping on the job is a legitimate, nondiscriminatory basis for termination when the employer has a clearly-established policy.… Although Plaintiff disputes the Hospital’s proffered reason that she intentionally removed herself from her labor patient’s room and went to sleep across the hall, Plaintiff has not put forth evidence which demonstrates that the Hospital did not “honestly believe” the facts before it and the eyewitness accounts of Plaintiff’s co-workers.