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

By Jon Hyman

Feb. 16, 2016

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.

On the FMLA interference claim, the court found no evidence that the plaintiff had actually requested FMLA leave after experiencing the onset of a migraine during her shift. Instead, she admitted that she, of her own volition and without telling anyone, went to lay down in a empty room after feeling dizzy.

Furthermore, the evidence shows that the Hospital initiated discussions with Plaintiff about accommodating her health condition; that the Hospital immediately approved Plaintiff’s application for FMLA intermittent leave at her one-year anniversary; and prior to September of 2014, Plaintiff used intermittent FMLA leave without any problems.

While the question this post asks may seem silly, there is a potential pitfall for employers.

If an employee approved for intermittent FMLA asks to lie down because of the FMLA-approved medical condition, or otherwise gives notice of the intent to invoke intermittent FMLA, Lasher suggests that denying the request might very well be FMLA interference. The employee in this case erred by not giving notice of her intent to take FMLA intermittent leave in advance of her nap. So, while you might think that you can fire an employee for sleeping on the job, the FMLA can complicate the issue.

Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at

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