[caption id="attachment_2451" align="alignright" width="113"]Maxine Neuhauser Maxine Neuhauser[/caption]

In an unpublished decision issued July 22, 2016, the New Jersey Appellate Division ruled that an overnight residential counselor for developmentally disabled adults was properly disqualified from unemployment because of “severe misconduct” after having been found sleeping on the job. In affirming the Division of Unemployment’s denial of benefits, the court noted that this was the employee’s second documented violation “of his employer’s most basic rule: stay awake.” The decision, James MacIsaac v. Board of Review and Center for Innovative Family Achievements, Inc. serves to remind health care employers of the importance of job descriptions and performance documentation, particularly with regard to patient care and safety.

Claimant MacIsaac’s  job description, which he admitted having received, included the requirement to be “alert for … [residents’] needs during the night, including therapeutic intervention and crisis management.” Nine months after his hire, MacIsaac was issued a corrective action notice and final warning for sleeping on the job. Two months later, a co-worker found McIsaac asleep on his shift again and reported it to management. He was fired three days later.

In New Jersey, severe misconduct disqualifying an employee from unemployment benefits includes “repeated violations of an employer’s rule or policy” N.J.S.A. 43:21-5 (b). The Appellate Division has interpreted this criterion "as requiring acts done intentionally, deliberately, and with malice."

In these circumstance, and relying on the documentation, as well as testimony of McIsaac’s supervisors, the Division of Unemployment, found that McIsaac’s:

behavior by falling asleep during working hours jeopardized the safety and well-being of developmentally disabled individuals [who] were under his care. Hence, the evidence amply supports that the claimant's conduct by failing to take steps to avoid falling asleep during his shift, was intentional, deliberate and malicious and constitutes severe misconduct.

The Appellate Division agreed.

Back to Health Law Advisor Blog

Search This Blog

Blog Editors


Related Services



Jump to Page


Sign up to receive an email notification when new Health Law Advisor posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.