Ee fell asleep while working with children
HRQ
2,849 Posts
It's a long one...
- 8 year ee is an Infant Teacher at one of our preschools. She is deaf, can read lips but conversation is difficult.
- Monday, supervisor and another teacher witnessed ee sleeping in a rocking chair while feeding an infant with a bottle. Each employee gave written statements, and incident was recorded on security video.
- Wed AM, at my direction, Preschool Director instructed ee in writing that she is being suspended pending investigation and asked the ee to submit a written statement no later than 4PM that day so we could make a timely decision re: the incident. Ee refused to sign, went home.
- Ee left me 3 voice mail messages via relay service indicating she is depressed, doesn't understand why she was suspended. I was in meetings all day Wed and Thur, received voice mail last night.
- Thurs, ee faxed a statement admitting she did fall asleep while holding an infant but "only for a few seconds"
- Policy states zero tolerance for not supervising the children.
- Approx three months ago we termed an employee at another location for falling asleep in a toddler classroom during the children's naptime.
- Ee recently returned from FMLA for childbirth, after approx 4 weeks Leave with no doctors release. Director said she asked for it but never followed up. Docs releases are required for all ee's to return from any type of FMLA but this has not been followed consistently, I've learned.
No disciplinary action has been taken yet.
I want to recommend termination but am concerned about her returning from FMLA without a doctor's release. Did we set her up for failure by allowing this to happen? Was it her responsibility to say "I can't stay awake, can I take a break?"
I am confident she will pay a visit to the EEOC because of her disability. Her disability has nothing to do with her ability to supervise the children, but I need to plan for it anyway. I've never experienced an EEOC investigation and don't know what to expect.
Thanks for whatever help you can give. I tried to keep it short but wanted to give you everything you need to give your valuable advice!
- 8 year ee is an Infant Teacher at one of our preschools. She is deaf, can read lips but conversation is difficult.
- Monday, supervisor and another teacher witnessed ee sleeping in a rocking chair while feeding an infant with a bottle. Each employee gave written statements, and incident was recorded on security video.
- Wed AM, at my direction, Preschool Director instructed ee in writing that she is being suspended pending investigation and asked the ee to submit a written statement no later than 4PM that day so we could make a timely decision re: the incident. Ee refused to sign, went home.
- Ee left me 3 voice mail messages via relay service indicating she is depressed, doesn't understand why she was suspended. I was in meetings all day Wed and Thur, received voice mail last night.
- Thurs, ee faxed a statement admitting she did fall asleep while holding an infant but "only for a few seconds"
- Policy states zero tolerance for not supervising the children.
- Approx three months ago we termed an employee at another location for falling asleep in a toddler classroom during the children's naptime.
- Ee recently returned from FMLA for childbirth, after approx 4 weeks Leave with no doctors release. Director said she asked for it but never followed up. Docs releases are required for all ee's to return from any type of FMLA but this has not been followed consistently, I've learned.
No disciplinary action has been taken yet.
I want to recommend termination but am concerned about her returning from FMLA without a doctor's release. Did we set her up for failure by allowing this to happen? Was it her responsibility to say "I can't stay awake, can I take a break?"
I am confident she will pay a visit to the EEOC because of her disability. Her disability has nothing to do with her ability to supervise the children, but I need to plan for it anyway. I've never experienced an EEOC investigation and don't know what to expect.
Thanks for whatever help you can give. I tried to keep it short but wanted to give you everything you need to give your valuable advice!
Comments
But I'm also concerned that she's back to work after only 4 weeks after giving birth. Probably you should have refused until you had a dr's release.
And how many of us have fallen asleep while feeding and rocking our babies??
Again, I understand the need to discipline...but it seems that she came back to work too soon. Do you have any employee assistance or a way to make sure she's screened for post-partum? I know a lot of people don't believe this exists, but it does, and it can be very serious. But can be treated with proper diagnosis...to everyone's benefit.
Good luck
How long did they wintesses observe her "sleeping"? I assume they observed her for a substantial amount of time and not just a few seconds.
She should have been released to return to work from the pregnancy disaibilty leave, but she wasn't. Since her return, any other "sleping" or inatttentive problems on the job? Is this the first time she has raised a "medical" or depression issue?
If not, the next quesiton is did she link or say that her sleeping on the job was due to depression or is she saying that she is depressed because she was suspended?
Did she give any explanation for sleeping, even though it was only for a few seconds?
If the depression is linked to the sleeping or other problems on the job have been linked to it, then you need to check out that medically.
You are not responsbile for not knowing or being aware of medical conditions you were not told of or that were not obvious. But now that she has raised it you MAY have to at least get rid of it by showing it is irrelevant or by acknowledging that was a contributing factor to the sleeping and that you are now evaluating if she is disabled under ADA. If the depression was raised previously or was something that the supervisor linked to previous problems, you'd need to pull back a little and consider that in deciding what to do. That may mean evaluating for ADA and reasonable accommodation.
Here are the things I would not let enter the equation because I find them irrelevant; The fact that she recently was out on FMLA, the fact that she recently had a baby, the fact that she refused to sign the disciplinary document, and the three voice mails.
Here are the things I would consider in my decision; the fact that you terminated one individual for the same or similar behavior, the fact that you do have a zero tolerance policy for not supervising the children, the fact that she endagered the health and perhaps life of an infant, the fact that you have a witnesses statement, the fact that you have a video, the fact that you have her faxed admission of guilt and the fact that you rightfully suspended pending investigation.
I recommend immediate termination. You have the results of your investigation in her written admission. You have a policy and a precedent has been established for not following that policy.
It's not productive at all to go into all the creative thought about what if or what might or maybe. The fact that there was an omission on your (the businesses) part by not ensuring that you had a dr's release is of no consequence, I feel. Under the law, you approved FMLA and returned her to work. She was aware of the duties of the job and the company policy and she endangered a life.
It's also not productive to assume she might file a charge. Wise to consider that, sure, but move on. Your bases are well covered. The EEOC, if they surface, will expect you to have granted the FMLA and to have returned her to work and to have treated her consistent with policy and precedence. That's all they can expect. Once they find that, you will see their departure. Post Partum? Really! Perhaps lumbago or severe diarrhea or narcolepsy as well. All of those can cause sleepiness. Why she went to sleep is not the issue. Nor is it an issue that she returned to work four weeks post delivery. The only issues are the responsibilities of the job and the consequences for having violated them.
deniseE - Her first and only mention of depression was in her voice mail to me, after she was suspended pending investigation.
Hatchetman - I'm not aware of any other inattention issues since her return, but I'll check with her supervisor. She returned to work maybe 2 weeks ago.
szemcumo - we do require a doc's release prior to return to work, and this incident showed me the supervisor is not following policy. Definitely an issue I'll handle with the supervisor! xx(
Don D - I've said it before, you have a gift for clearing away the irrelevant stuff and getting down to the real issue. "The only issues are the responsibilities of the job and the consequences for having violated them."
Thanks again, everyone. What would I do without you? We will term, assuming I don't learn this has happened before and we let it go... I'll definitely use an interpreter and will let you know how it turns out.
First, you said 'we have a zero tolerance policy'. That tells me rather clearly that it makes not one whit 'how long' the woman dozed or how soundly she slept or if she had been asleep before or whether she sleeps with her mouth open or closed. Zero tolerance speaks for itself. It takes half a second to drop an infant on his head to his death. One need not doze for a certain period of time or repetitively over time to violate a zero tolerance policy.
Secondly, the fact that she mentioned or intimated or said or signaled "I'm depressed and don't understand" is by no means a signaling of or invocation of the ADA process of interraction that might lead to revelations of disability and accommodation. My God, to the contrary. What if the woman had said, "I don't understand, my back is killing me, I can't see straight and I've been in the bathroom for hours"? Should we then slam the brakes on and flit off into notions of disc degeneration, the need for ostomy measures or assumptions that she's blind as well as deaf?
Reason tells me two things: You have a policy that's been violated and you have a clear precedent as to what the consequence of that is. Finally, the release to return to work is entirely separate and is a disciplinary issue with the manager who should have required it and it has no possible bearing on the facts you have before you regarding this employee's violation.
This is MY first knowledge of her doing this, but the supervisor obviously can't pick and choose when it's OK to sleep and when it's not. I think it's an important question.
I do want to point out an article about an ee that was fired for sleeping on the job and the 7th circuit found that he should have been offered FMLA for depression. - And this wasn't even in California!
Of course it's not the same situation as yours, but it's something you should probably look at.
Here's the site:
[url]http://www.grahamdunn.com/cybergrahams/jhs_september2003.htm[/url]
Good luck
HRQ has stated that the employee returned to work 4 weeks after having a child, without having a doctor's authorization. She has also stated that they do have a policy regarding return to work but it wasn't followed. HRQ has also said that there is a concern about a possible EEOC charge but what about a violation of FMLA rights?
It's quite possible that this poor, overwrought, new mother will take the "I wasn't ready to come back to work but they forced me and I was afraid of losing my job" approach. In such a situation, I can easily see a jury handing over a hefty judgement against the big, bad, demanding employer.
Please don't get me wrong in the sense that I don't think something should be done to address this issue but I think there are other factors involved that need to be examined. The facts are that the supervisor failed to ensure the employee was physically and/or mentally ready to return to work, something that could easily have been done by following your policy.
I think that jumping on the idea of termination may get you into trouble, especially since you allowed an employee to work without following your own policy.
This is the same as if the employer might have a policy that person's returning to work attend a 3 hour re-orientation program and the employer failed or forgot to do that. And, in my opinion, it would be about equal to the situation where the employer might even have recently discovered that they actually never did give the employee the approved FMLA paperwork back 20 months ago. None of these scenarios, even the one where the ee returned to work without a release, had any impact at all on the ee getting what they are entitled to under the FMLA.
We termed the employee. We used an interpreter, and the employee cried at the end. I don't think she actually believed we might term her, even though I'd told her in a written conversation (I don't speak sign language) that the investigation could result or termination of her employment. She applied for unemployment two days later, and I haven't heard anything since then. (fingers crossed)
So... Wednesday, I received a report of ANOTHER employee who fell asleep while in a classroom of two-year-olds. She has been termed too. Last December we also termed an employee for sleeping in a classroom. These were all at different preschool locations. It's just odd that we've had three in six months, but NONE in the previous two years I'd been with the company.
Do we add a statement to the handbook that advises employees "you must be awake at all times when responsible for a child or group of children" and explain that "if you can't seem to stay awake, you must contact your supervisor to advise her you are unable to safely do your job"? My goodness.
I'm really just venting here, but am open to your suggestions about how to get employees to understand that they cannot sleep while working.
xI-) xI-) xI-) xI-) xI-)
BUT, two of the incidents occurred on a monday and one occurred on a tuesday. We are a mo-fr business. Apparently their personal weekend activities are cutting in to their sleep time. Maybe espresso IV's are in order. (Works for me! x:) )
?Doesn't compute.
Good luck!!
Michelle
My $0.02 worth!
DJ The Balloonman