STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

CHINWE D OPARA, Employee

MARIAN FRANCISCAN CENTER INC, Employer

UNEMPLOYMENT INSURANCE DECISION
Hearing No. 02611358MW


An administrative law judge (ALJ) for the Division of Unemployment Insurance of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and conclusion in that decision as its own, except that it makes the following modifications:

1. The final sentence of the third paragraph of the Findings of Fact and Conclusions of Law section is deleted.

2. The first sentence of the fourth paragraph of the Findings of Fact and Conclusions of Law section is modified to read as follows:

"The employee was at fault for sleeping at work."

DECISION

The decision of the administrative law judge, as modified, is affirmed. Accordingly, the employee is ineligible for unemployment benefits from week 42 through week 49 of 2002 and until she has earned wages in covered employment performed after the week of discharge equaling at least $1,540.

Dated and mailed May 30, 2003
oparach . umd : 115 : 1    MC 659.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner


MEMORANDUM OPINION

The employee worked twice for the employer, a nursing home, the last time for less than two months as a certified nursing assistant.

The employer discharged the employee, alleging that, at 3:30 a.m., the employee's supervisor discovered her asleep in a room remote from the rooms of the residents for whom she was responsible, with her school work spread out on a desk or table in the room. The representative of the employer who appeared at the hearing testified that the employee came to speak to her after her discharge, admitted that she had been sleeping, and asked for another chance. Neither the supervisor who observed the incident, nor those present at the discharge meeting, testified at the hearing.

The employee testified that she did the required rounds on the night at issue; that she was not asleep when her supervisor discovered her in the visitors' room but she had laid her head on a table and the lights were out in the room; and that she had first gone in to the visitors' room at 1:30 a.m. but had come out at 2 a.m., checked the eight residents for whom she was responsible, and noted that they were all sleeping.

The commission has always held those who provide direct patient care in nursing homes or other comparable facilities to a very high standard due to the fragile and vulnerable populations they serve. Thomas v. San Camillo Inc., UI Hearing No. 01608885MW (LIRC May 15, 2002) (misconduct found where certified nursing assistant on Alzheimer's/Dementia unit in skilled nursing facility was observed for two minutes with her eyes closed, because her responsibilities required her to be alert at all times and her failure to do so created an immediate threat to the safety and welfare of the residents for whom she was responsible); Jackson v. Snap On Tools MFG Company, UI Hearing No. 99607424MW (LIRC Feb. 24, 2000) (misconduct may be found for even a single instance of sleeping for employees with jobs in which one of the inherent responsibilities is to be alert and a failure to do so would create an immediate threat to the safety and welfare of persons and property); Washington v. LIRC and Meritus Education Resources Co., Case No. 97-CV-010214 (Milw. Co. Cir. Ct., May 15, 1998) (misconduct found for a single incident of sleeping where employee responsible for a class of four- and five- year-old children)

Here, the employee admits that she removed herself from the immediate vicinity of the eight residents for whom she was responsible that night, and was discovered by her supervisor with her head down on a table and the lights off. Even if she wasn't asleep, she wasn't alertly attending to her duties, and, as a result, she placed the safety and welfare of her patients in jeopardy. The commission concludes that, under the circumstances present here, this single incident would support a finding of misconduct.

The commission therefore finds that, in week 41 of 2002, the employee was discharged for misconduct connected with her employment within the meaning of Wis. Stat. § 108.04(5).

cc: Austin Opara


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