An employer which terminated a flight instructor for repeated sleeping on the job due to his sleep apnea did not violate the Americans with Disabilities Act for failure to accommodate his disability, the Fifth Circuit holds. The company also did not violate the Family and Medical Leave Act when it fired him for poor performance rather than grant his leave request, the Court says.

Although the employee’s sleep apnea qualifies as a disability, he failed to show that he could perform his job in a manner that could be reasonably accommodated, the Court observes. The employee’s repeated “nodding off” while at work continued despite the company’s repeated offers of assistance, including time off for treatment. The Fifth Circuit says that the “courts have repeatedly approved of ADA-challenged discharges for falling asleep at work, particularly in safety-sensitive positions.”

The Court agrees that under the FMLA, he would have been entitled to leave that he sought for treatment of his condition, but that he was not terminated because he requested leave: “[A]t least for purposes of the FMLA—if not the ADA—one can be fired for poor performance even if that performance is due to the same root cause as the need for leave.” Grubb v. southwest Airlines