DIANE R SANDERSON, Employee

FSQ INC, Employer
c/o TBT ENTERPRISES INC

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.

The decision of the administrative law judge is affirmed. Accordingly, the employee is ineligible for benefits beginning in week 30 of 2003, and until seven weeks have elapsed since the end of the week of discharge and the employee has earned wages in covered employment performed after the week of discharge equaling at least 14 times the employee's weekly benefit rate which would have been paid had the discharge not occurred.

Dated and mailed February 3, 2004
sandedi . usd : 115 : 2  MC 659.01

/s/ David B. Falstad, Chairman

/s/ James T. Flynn, Commissioner

/s/ Robert Glaser, Commissioner

It is undisputed that the employee had received disciplinary warnings on March 4, June 10, and June 19, 2003, and that the next step in the employer's progressive disciplinary process was termination; that, on July 22, 2003, the employee fell asleep while she was attending to a patient; that the employee was aware that it was a violation of the employer's policies for her to sleep while on duty and that it could result in her termination; that the employee had taken certain cough medication before this incident but did not advise the employer that this medication made her drowsy or otherwise impaired her performance in any way; that the employer's work rules state that sleeping on duty is a category 3 violation that "will lead to termination;" and that, after investigating the incident, the employer terminated the employee.

The commission has 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 population 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); Opara v. Marian Franciscan Center, Inc., UI Hearing No. 02611358MW (LIRC May 30, 2003) (misconduct found for single incident where CNA not alertly attending to patient care duties when discovered with head down on table in area removed from assigned unit).

The employee admits that she "dozed off" while attending to a patient. Given her patient care responsibilities, this is sufficient to support a conclusion of misconduct. Although she indicates that it could have been due to her ingestion of cough medication, it was her responsibility, given the nature of her assigned duties, to determine prior to taking the medication what impact it could have on her ability to perform her job responsibilities, or at least to notify her supervisor that she took the medication and was uncertain as to its possible side effects. The employee did not testify that she took either of these actions.

A conclusion of misconduct is even more compelling here since the employee was on notice that her job was in jeopardy due to prior progressive disciplinary warnings for alleged performance deficiencies.

cc: 
Five Star Quality Care, Inc., Newton, MA 02458
Woodland Healthcare Center, Brookfield WI 53045

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uploaded 2004/02/09