Staying Awake is a Business Necessity for Any Employee

by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel

& Gail Cohen, Esq. - Assistant General Counsel, Employment and Litigation

February 10, 2016


Unfortunately, nearly every employer has caught an employee sleeping on the job. But what if that employee attributes his sleepiness to his disability?  What is the employer’s obligation to accommodate the employee under the Americans with Disabilities Act (ADA)?  In observing that “[r]emaining awake is a business necessity for any employee,” a festock-photo-3399436-hiding-undercovers-modderal court tossed out an employee’s ADA failure to accommodate claim related to his disability, diabetes, based on the employer’s refusal to move him from a night shift to the coveted day shift.

The Sleepy Security Guard. Jeffrey Schulman (“Schulman”) was hired as a security guard working the night shift at the Wynn Las Vegas Hotel and Casino (“Wynn”).  He disclosed his condition, Type I diabetes, prior to being hired for the position.  The day shift was a highly coveted position and Wynn maintained a waiting list for those jobs.  After about 9 months on the job, in August 2009, Schulman presented a note from his treating physician recommending that he be transferred to the day shift. Wynn did not transfer Schulman to the day shift.  In November 2009, Schulman was caught sleeping on the job and was given a written warning for doing so.  At the meeting to administer this discipline, Schulman asserted that he fell asleep because of his diabetes and again asked to be transferred to the day shift.  Wynn gave him a form for his physician to complete to verify that a transfer to the day shift was required. He did not return this form to Wynn.

Just three months later, in February 2010, Schulman was again caught sleeping on the job.  Because it was the second occasion of him doing so and because he had not presented any medical documentation to justify these infractions, Wynn suspended him, pending an investigation.  Shortly thereafter, Schulman presented the medical form, this time completed by his doctor, who opined that he could perform the essential functions of his job, provided he was moved to the day shift and given opportunities to manage his blood sugar by having snacks and insulin on his person at all times.  Wynn consulted with its own doctor, who agreed that he should be able to work if he had the tools to manage his blood sugar, but disagreed that this necessitated him being on the day shift.  Concerned about the understandable risk of having a security guard fall asleep, Wynn offered Schulman assistance in seeking another position.  In May 2010, he was offered and accepted an Assistant Shift Manager position.

Several Positions and Naps Later… In August 2010, Schulman was caught, yet again, sleeping on the job and was placed on suspension pending investigation.  He again attributed this incident to his diabetes.  Wynn wrote to Schulman’s physician to ask him how to prevent future incidents.  His doctor emphasized the need for Schulman to monitor his condition and again opined that the day shift was important because blood sugar levels in the evening tend to be more erratic; however, his doctor also observed that sleepiness would also be a problem during daytime hours.  After receiving the doctor’s input, Wynn met with Schulman and offered him a daytime position in Wynn’s Tiny Baubles retail store, which he accepted.  Schulman was ultimately fired for poor sales performance and brought suit, alleging, among other things, that Wynn violated the Americans with Disabilities Act (“ADA”) by failing to accommodate him when it refused his request to move to the day shift.

Wynn won the case when the court dismissed all of Schulman’s claims on summary judgment prior to trial.  Wynn produced evidence that Schulman understood that remaining awake and alert while on shift was an essential function of his position as a security officer. The court recognized that employers don’t have to grant the exact accommodation request made by an employee and that failing to do so does not necessarily provide the basis for a failure to accommodate claim under the ADA.  In this case, the court properly concluded that Wynn did offer Schulman an effective reasonable accommodation – he was allowed to manage his condition with snacks, insulin, and testing while on the job.  Moreover, Schulman’s transfer to alternate jobs was not disability discrimination but, rather, it was because he fell asleep on the job on numerous occasions despite having remedial measures with him.  Observing that “remaining awake is a business necessity for any employee, especially a security guard,” the court ruled in favor of Wynn.

PINGPings for employers. What did Wynn do well? First, Wynn was not deterred by an employee who attributed serious performance infractions to his condition. It is not uncommon, and somewhat understandable, that an employer, particularly one not well-versed in the ADA and its regulations, will shrink from disciplining an employee for performance failures he claims are the result of his condition.

What else?

  • Wynn worked with the employee through the interactive process and, over the course of 3 years, allowed Schulman to try several alternative positions. Wynn ultimately terminated Schulman for performance issues unrelated to his disability.
  • Wynn engaged the employee’s physician in the interactive process to understand what could be done to assist the employee in meeting the expectations of the job. The ADA allows employers to conduct inquiries of the employee’s physician, as long as it is job-related and consistent with business necessity.
  • Although Wynn strongly considered the opinion of Schulman’s provider and accepted many of the accommodations suggested (keeping his diabetes materials with him and allowing them for monitoring his condition), Wynn also consulted its own independent provider on those recommendations to draw a conclusion of what reasonable accommodation(s) Wynn should offer.

Schulman v. Wynn Las Vegas (D.Nev. Jan. 15, 2016)