Monday, April 9, 2012


Here is an important case that the DOL recognizes regarding diability and misconduct:

"A-750-2135 Index 1105 C1; 1170.6


March, 2011



A claimant discharged for falling asleep on the job is not subject to disqualification when his sleeping is caused by a medication prescribed for his chronic medical condition, and when the employer who has knowledge of claimant’s medical condition, condoned claimant’s behavior in the past.

A.B. 545303

The Department of Labor issued the initial determination disqualifying the claimant from receiving benefits effective November 13, 2008, on the basis that the claimant lost employment through misconduct in connection with that employment and holding that the wages paid to the claimant by ONEIDA INDIAN NATION OF NY prior to November 13, 2008, cannot be used toward the establishment of a claim for benefits. The claimant requested a hearing.

The Administrative Law Judge held a hearing at which all parties were accorded a full opportunity to be heard and at which testimony was taken. There were appearances by the claimant and on behalf of the employer. By decision filed March 2, 2009 (A.L.J. Case No. 109-00124), the Administrative Law Judge sustained the initial determination.

The claimant appealed the Judge’s decision to the Appeal Board. The Board considered the arguments contained in the written statement submitted on behalf of the claimant.

Based on the record and testimony in this case, the Board makes the following

FINDINGS OF FACT: The claimant was employed as a cashier in a convenient store from January 9, 2008 until November 12, 2008. The claimant worked full time on the third shift which ran from 9:30 p.m. until 5:30 a.m. The claimant was diagnosed with diabetes and his medical practitioner was trying to regulate his condition with different medications. As a result the claimant suffered from dizziness and fatigue. The claimant’s supervisors were aware of his condition and the claimant had been told that when he was dizzy or fatigued he could sit down and have something to eat or drink. On claimant’s last day of work, the claimant’s new supervisor saw claimant sleeping during his shift. He was snoring and drooling. She took a picture of him on her cell phone. He was holding a coffee cup which was drooping in his hand. She made several attempts to wake the claimant. The claimant had felt dizzy and fatigued that evening and had sat down as previously directed. There was a customer complaint. The supervisor reported claimant to management and he was discharged. Claimant also worked a second job as a driver from 7:00 a.m. until 1:00 p.m. This was not the first time that management, including the new supervisor, knew of claimant falling asleep on the job.

OPINION: The credible evidence establishes that the claimant was discharged for sleeping on the job. We do not find it credible that the claimant was not sleeping. We note that the employer has presented a picture showing claimant to be asleep, with his coffee cup at a drooping angle. However, we further accept as credible the claimant’s contention that he suffers from diabetes and as a result of the disease and medication changes he suffers from dizziness and fatigue. We further accept as credible his contention that his supervisors were aware of his condition and attendant problems and that it had been suggested to him that when he felt like this he was to sit down. We further note that the claimant’s supervisors had known that claimant had fallen asleep in the past but that claimant was not discharged until there was a customer complaint. The employer’s failure to address the claimant’s problem on prior occasions is considered to be a condonation of this action, and given the circumstances of this case we conclude that the claimant did not commit an act of misconduct when he fell asleep during his shift.

DECISION: The decision of the Administrative Law Judge is reversed.

The initial determination is overruled.

The claimant is allowed benefits with respect to the issues decided herein.


The Appeal Board’s decision in this case represents an exception to the general rule that sleeping on the job is misconduct. In this case the claimant’s sleepiness was caused by a medical condition beyond his control. In addition, the employer’s apparent condoning of his behavior in the past left the claimant with no way of knowing that his job was in jeopardy."

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