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Can You Fire Someone for Sleepwalking? Merck Will Find Out in Court

David Turkheimer might be the unluckiest pharmaceutical sales rep on the planet. After allegedly resisting a request from his Merck (MRK) boss to tell a doctor his patients might "die" if they weren't prescribed the HPV vaccine Gardasil, he flipped his car while sleepwalking, Turkheimer claims in a wrongful dismissal suit.

The key issue in the case is whether Merck's HR department was wrong to then fire Turkheimer after obtaining his medical records, and whether sleepwalking is a disability that prevents an employee from being discriminated against.

In October 2010, Turkheimer went to bed as normal, but while asleep he entered a somnambulent state, got into his car, drove a few blocks and smashed into two parked vehicles.

Arriving at the hospital in a state of "semi-unconsciousness and delirium," doctors gave him the antipsychotic Haldol while they figured out what was wrong with him. When they realized that he'd taken the sleeping pill Ambien along with the skin-rash drug prednisone before going to bed -- a combination of which triggers sleepwalking -- they let him go.

Turkheimer took the next day off work. His boss, district business manager John Connelly, requested Turkheimer's medical records concerning the absence, and Turkheimer complied. Upon discovering he'd been given an antipsychotic, and that he'd driven his car while on Ambien, Merck allegedly fired him for driving while under the influence, being incapable of operating a car -- a requirement of the job -- and being "loopy," the complaint alleges.

Merck has yet to file a response. From the complaint, Merck can probably argue that if Turkheimer continued to take Ambien to help him sleep -- he suffers from sleep apnea, according to the suit -- then he may indeed be unable to drive, especially now that he knows he is prone to sleepwalking. (One of Ambien's infamous side effects is sleep-driving.)

Turkheimer is also suing under a New Jersey law that allows employees to refuse to commit illegal acts. He claims Donnelly also suggested Turkheimer tell the doctor he could be sued for not prescribing Gardasi:

Merck is likely to point out that there was an eight-month gap between the confrontation with Donnelly and the time Turkheimer was let go. The two events do not seem to be temporally linked.

Of course, Merck is in the process of shedding 16,000 employees following its merger with Schering-Plough. Turkheimer's car crash may have made him look like an easy decision.


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