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On Opinions: Appeals court splits over sleeping as misconduct

Sleeping on the job can get you fired anywhere, but whether you also lose your unemployment benefits may depend on where you live in Missouri.

A woman who was fired for sleeping on the job in Columbia has a chance to argue that her actions were not misconduct under the circumstances, the Missouri Court of Appeals’ Western District has held.

“Certainly not all instances where an employee loses consciousness at work can be deemed to have involved a conscious decision by the employee or is the result of conscious behavior, and the circumstances surrounding the incident should be considered,” Judge Joseph M. Ellis wrote.

The court’s Eastern District, however, decided just last month that falling asleep on the job was misconduct per se and required a denial of unemployment compensation benefits.

In Nickless v. Saint Gobain Containers, Inc., the Eastern District stated that “the idea that sleeping on the job is anything other than misconduct is absurd.”

Night shift

Dawn Richardson worked as a nurse’s aide in a nursing home’s Alzheimer’s unit.

In April 2010, she tried to call in sick shortly before an overnight shift after she arrived home from a trip to Virginia. She told her supervisor that she had a bad reaction to seafood, but the supervisor told her she could not call in so close to her shift.

Richardson took Benadryl to counter the reaction and reported to work. She was then found sleeping at her desk by a nursing director and later by a night supervisor. Richardson was fired the next day.

When Richardson was denied benefits on the basis of misconduct, she argued that her sleep was the result of an involuntary reaction to Benadryl and that the supervisor had told her to take the drug.

Real issue

The commission found credible Richardson’s testimony that her allergic reaction to seafood made her feel like her throat was swelling shut. The commission, however, upheld the disqualification from benefits based on findings that she committed misconduct by reporting to work without proper rest and under the influence of medicine.

The appellate court found that the commission’s findings were clearly erroneous and remanded the case because the commission failed to address “the real issue,” which was whether falling asleep on the job was misconduct.

Relying instead on cases from other states, the Western District declined to follow the Eastern District’s October decision.

“We conclude that the better reasoned approach is that, while sleeping on the job certainly can constitute misconduct related to work in many, if not most, situations, such a determination is dependent on the facts and circumstances of each case,” Ellis wrote.

The court pointed out that some of the factors to be considered might be the nature of the job, the employer’s policies, whether the actions of the employer contributed to the employee being susceptible to falling asleep or whether a worker was undergoing a temporary illness or personal problems.

Courts also may consider evidence that a worker hid or created an environment conducive to sleeping as well as whether a worker had received prior warnings.

“To the extent Nickless suggests or holds that falling asleep at work is misconduct per se, and/or that the surrounding circumstances are otherwise irrelevant, we decline to follow it,” the Western District concluded.

The case is Richardson v. Division of Employment Security. MO

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