Employer Notice of Mental Disability, Quirky Question # 10
Quirky Question # 10:
Not long ago, a stray dog wandered into our warehouse. It did not hurt anyone but it apparently frightened one of our employees. In the days and weeks after the incident, our employee began behaving more and more bizarrely. She yelled at her supervisors and co-employees. In a conversation with our company’s President, she began yelling at him about the “f***ing dog.” During this time, she also missed a fair amount of work. Sometimes she would show up and then leave soon thereafter. On other days, she simply did not show up. One day, she called the police to complain of harassment because her supervisor had moved her belongings into a nearby office. After she had used up her paid leave, we notified her how to apply for FMLA leave. She never did so and not long thereafter, we discharged her. She now has sued our firm for violating the FMLA. Did we do something wrong? How can she sue us for an FMLA violation if she never notified us that she needed to take FMLA leave?
Roy’s Analysis:
Okay, I admit it. As some of you undoubtedly realized, I did not receive this question from a client or a reader. The fact pattern is derived from a case that was decided very recently, Stevenson vs. Hyre Electric Co., No. 06-3401 (7th Cir. October 16, 2007).
[Occasionally, I will address a very recent decision in my questions. To make it easy for you to access this material, I will organize it under the topic addressed (here, FMLA), as well as a new category we've initiated with this question called "Recent Decisions."]
Turning then to the question presented, the facts described above are drawn from the Stevenson case. As the Seventh Circuit described, the employee had “no documented history of misconduct or health problems” at her employer, but “[a]ll that changed . . . when a stray dog climbed through the window the warehouse where [she] worked and approached her.” Stevenson had an immediate adverse reaction to this situation which combined spraying air freshener around her work area and “yelling, cursing and screaming” at her co-workers for several minutes. She left work later that day because she was feeling ill and did not attend work the following day.
Two days after the incident, Stevenson had a very agitated 10-minute interaction with the Company’s President, again yelling profanities about the dog. The President was unable to calm her down. The same day, Stevenson filed an OSHA complaint about the dog. She later left work to visit the Emergency Room. Over the next week or so, Stevenson continued to miss work and continued to behave oddly. The Company sent Stevenson a letter describing her rights under the FMLA but Stevenson failed to notify her employer that she desired FMLA leave.
Anxious about Stevenson’s continuing aberrant behavior, the Company changed the locks on the warehouse. On March 9, approximately one month after the dog incident, the employer terminated Stevenson’s employment.
In granting the employer’s motion for summary judgment, the Illinois district court concluded that the employee had failed to satisfy the requirements of the FMLA that she provide her employer notice of her need for FMLA leave. The federal appellate court reversed this decision.
As the Seventh Circuit pointed out, under the statutory scheme of the FMLA and the accompanying federal regulations, an employee is obligated to notify her employer that she will need FMLA leave “30 days in advance.” When the need for leave is not known in advance, however, the employee should give notice “as soon as practicable under the facts and circumstances of the particular case.” The regulations anticipate that notice will be provided within one or two days of the date the employee learns of the need for the leave, except in “extraordinary circumstances where such notice is not feasible.” In this case, the appellate court found that Stevenson was obligated to provide notice to her employer of her need for FMLA leave after her visit to the ER and the diagnosis by the ER physicians. She failed to do so.
The appellate court went on, however, to point out that notice is not always necessary. In particular, the court stated, notice is not necessary where the employer has “constructive notice” of the employee’s need for the leave. Relying on an earlier 7th Circuit decision, the appellate court observed that constructive notice may occur when the employee is unable to communicate her illness or when “clear abnormalities” in the employee’s behavior provide the employer constructive notice of the serious health condition. In the Stevenson case, the circuit court concluded that Stevenson’s clear behavioral abnormalities could have put the employer on notice of her need for FMLA leave. Further, the court found that her condition could have constituted a “serious health condition” under the FMLA that would have qualified her for leave. The court therefore reversed, sending the case back to the trial court to reach factual determinations on both the constructive notice and serious health condition issues.
The Stevenson case is intriguing on multiple levels. My concern is that it imposes on employers and their management employees, very few of whom have any psychological or medical expertise, an unrealistic obligation to discern when employees are suffering from a serious mental health problem warranting FMLA leave. If the employer fails to pick up on the cues that should provide it “constructive notice,” a discharged employee may later be able to assert an FMLA claim that she was deprived of a leave opportunity that would have enabled her to remedy the problem.
For example, when an employee begins engaging in severe sexual harassment of another employee, is this a reflection of a mental health problem that would be improved by an FMLA leave? If an employee is not performing his job duties adequately, does this reflect depression or some other mental illness? If an employee is belligerent and bellicose toward his co-workers, does this mirror a mental health issue that warrants leave? In these and hundreds of other contexts, behaviors by employees may reflect mental health problems, or they may not.
Yet the standard for determining whether an employee has provided the employer “constructive notice” of a “serious health condition” will be difficult to determine and, in my view, somewhat malleable. Employers may discover, long after the fact, that the problem they thought they had solved by terminating the problem employee actually should have been addressed through leave and corresponding medical treatment. That possibility will inject a level of uncertainty into discharge decisions that employers previously thought were unassailable.
Employee Cooperation in Investigations, Quirky Question # 9
Quirky Question # 9:
Two of our employees are involved in a romantic relationship. We recently learned that our male employee assaulted our female employee at her apartment. He was charged with domestic assault based on her report and convicted.
We then tried to elicit information from our female employee about whether she felt her paramour posed a risk of violence to her or any of her co-workers. She refused to answer our questions, claiming they invaded her privacy. We do have a policy that requires cooperation with our investigations. What options do we have? Can we fire her for refusing to assist in our investigation?
Roy’s Analysis:
Your questions implicate difficult issues that highlight the tension between the competing interests of employers to provide a safe, violence-free work environment, and employees’ legitimate privacy interests. Here, the interests of the employer predominate.
Every employer has a duty to attempt to provide a safe work environment. While all risks cannot be anticipated, known risks cannot be ignored.
Consider, for example, the potential consequences of a “do-nothing” approach. If the male employee escalated the violence towards his significant other, and committed a violent crime against her in the workplace (or anyone else who intervened, or who just happened to be an innocent bystander), it would be extremely difficult to justify the company’s lackadaisical response, particularly if the injuries suffered by your female employee or your other workers were serious. Defending a lawsuit by your other injured employees (or their families in the event of a death), would be difficult, at best.
Given this potential, it is imperative that you attempt to gather additional information from the employee involved to enable the company to assess the risk and, if necessary, take appropriate precautions. Even in the absence of a company policy requiring cooperation in company investigations, your firm would be justified in exploring these issues thoroughly with the female employee. Since your company has a specific policy requiring cooperation, your firm’s position is even stronger.
If your employee refuses to cooperate in the investigation, you could impose any discipline you deem appropriate, including discharge. I would not advocate jumping to that ultimate sanction. Rather, I would explain to her that a failure to cooperate jeopardizes her continued employment. I also would explain why the company needs to explore these issues, both from a practical and legal perspective. If she nevertheless refuses to reveal any of the information that you consider necessary to evaluate the situation accurately, you could impose a progressive disciplinary approach, starting with suspension with pay, then suspension without pay, and finally termination. But, again, you need not pursue a progressive disciplinary approach if you have concluded that discharge is the appropriate response to this situation.
The fact pattern you describe is very similar to a case decided by the United States District Court for the Northern District of Ohio in late 2005, Rowe v. Guardian Automotive Products, Inc., 2005 WL 3299766 (N.D. Ohio). In Rowe, like the situation you describe, two employees were living together. The male employee assaulted the female employee, breaking three of her ribs. The male employee was charged with assault and convicted. This information came to the company’s attention when the male employee later received a 30-day jail sentence for driving without a license. When the company explored the situation, it discovered the male employee had a lengthy criminal history involving alcohol abuse, threats to kill his ex-wife, physical acts of violence against his ex-wife, and the assault on Rowe. Based on this history of violence, the company terminated the male employee. The company also tried to obtain additional information directly from Rowe to ascertain whether the now-ex-employee posed a risk of harm to her, her co-workers, or her supervisor.
On three separate occasions, the company tried to elicit this information from Rowe and each time she refused to cooperate, arguing that the inquiries invaded her privacy. She pointed out that she was on leave when the assault occurred and that it had not occurred at work. Despite those facts, the company terminated her employment based on her refusal to cooperate with the company’s legitimate investigation. The federal District Court upheld this decision, dismissing the plaintiff’s invasion of privacy case on summary judgment.
The bottom line is that employers have an obligation to attempt to create a safe, violence-free working environment. If an employee refuses to support that effort by refusing to participate in an investigation bearing upon this issue, the employer is justified in discharging that employee.
Readers’ Responses:
I think it’s worth highlighting that in both the question and the cited case, the Company had a policy in place that required employees to participate in the investigatory process. Therefore, the employee should understand she is being approached consistent with the normal practices of the Company. I also believe it behooves the Company to articulate to the female employee one or more reasons to pursue the investigation that may make her feel uncomfortable. For example, if there is enough evidence (as appears to be the case in both instances) to terminate the male employee without the female’s input, she might naturally feel the investigation (and her part in it) is unnecessary. Therefore, having someone from the Company articulate the Company’s concerns about retaliatory acts by the male or other potential targets at the Company might enable the female employee to understand the Company is not merely voyeuristically interested in what she may perceive as a personal matter. Finally, in the cited case, the female was given numerous opportunities to comply with the Company’s investigation. This appears to be a prudent course of action where the female employee may be initially reluctant to speak — whether it be to “protect” the male or because she does not want to “relive” a traumatic experience.
Drug Testing Drivers, Quirky Question # 8
Quirky Question # 8:
We provide a number of our sales employees with company automobiles. We were wondering whether we could randomly test these individuals for alcohol or drug use. Needless to point out, we would like to ensure that employees driving our company vehicles do not endanger either themselves or members of the public.
Roy’s Analysis:
You pose a good question. Like so much of employment law, your question illustrates the tension between competing societal interests. Here, the tension exists between employees’ rights to privacy and public safety.
States have different drug testing statutes, so the answer to your question is state-dependent. Since I practice out of Minneapolis, I’ll answer your question with reference to the applicable laws in Minnesota. The relevant Minnesota statute is the Minnesota Drug and Alcohol Testing in the Workplace Act. Under the statute, an employer is allowed to conduct random drug tests for employees who occupy “safety sensitive” positions. “Safety sensitive” positions are defined as those jobs in which “impairment caused by drug or alcohol use would threaten the health and safety of any person.” See Minn. Stat. § 181.950, subd. 13. Another way to frame your question, therefore, is to inquire: “Does a job that involves driving a company automobile fall within the definition of a “safety sensitive” position, such that your firm would be justified in engaging in random drug testing?”
There is not a great deal of case law in Minnesota defining precisely which positions are, or are not, “safety sensitive” positions. The courts have found that jail personnel, patrol officers, investigators, and court security deputies all occupied “safety sensitive” positions. Similarly, workers involved in the maintenance of railway lines have been held to occupy “safety sensitive” positions. In contrast, workers involved in loading, unloading and cleaning commercial aircraft have been held not to occupy “safety sensitive” positions, a fact that may cause some unease among airline passengers.
I am not aware of any Minnesota cases addressing the issue of whether driving a company vehicle involves a “safety sensitive” position. Some insights, however, can be obtained from parallel federal law. In the federal context, and the public employer arena, drug testing is considered a “search” within the meaning of the Fourth Amendment. Random drug testing has been deemed permissible only where it serves “special governmental needs . . ..” National Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989). The nation’s highest court has held that “special needs” exist where an employee works in a “safety sensitive” position. In deciding whether an employee occupies a “safety sensitive” position, courts have been directed to consider whether the employee’s duties are “fraught with such risks to others that even a momentary lapse of attention [could] have disastrous consequences.” Skinner v. Railway Labor Exec. Ass’n, 489 U.S. 602, 628 (1989).
Applying these standards, federal courts have found that the following positions are “safety sensitive” such that random drug testing should be permitted: a) air traffic controllers; b) aircraft maintenance personnel; c) railroad safety inspectors; d) highway and motor carrier safety specialists; e) lock and dam operators; f) heavy equipment operators (e.g., forklift, tractor and crane operators). However, federal courts have held that Department of Energy employees whose jobs included driving cars and vans containing documents and Department of Agriculture employees whose jobs included driving shuttle buses, mail vans, and cars, did not occupy “safety sensitive” positions.
Based on this analogous federal case law, it would appear that someone whose job responsibilities involve driving a company vehicle does not occupy a “safety sensitive” position that would subject that person to random drug testing. In my view, that analysis may be misguided. Certainly, someone behind the wheel of a 6000 pound SUV going 70 mph is engaged in an activity where “even a momentary lapse of attention [could] have disastrous consequences.” Moreover, I’d wager that someone driving an SUV traveling at 70 mph is a bit more dangerous to the general public than a forklift operator driving around a warehouse at 3 mph.
According to the U.S. Secretary of Transportation, there were approximately 43,000 automobile deaths on American highways, both in 2005 and 2006. Here in Minnesota, just two days after I posted QQ # 8, the Star Tribune reported on a tragic situation involving a van driver for the Forest Lake Area School District who caused a crash that killed his passenger, a 14-year-old student, and himself. Exacerbating the tragedy, as reported by the Star Tribune, the driver had marijuana in his system, and additional marijuana was found in the van. See, Student’s Driver Had Drugs In, With Him, Star Tribune, November 14, 2007, p. A-1. Both the national statistics and this recent, profoundly sad story here in Minnesota, suggest that it is time for state legislatures to re-examine the balance between employee privacy and public safety. In my view, companies providing employees with company vehicles should be permitted to randomly drug test these individuals. (Keep in mind that it will be the companies that are sued if there is an accident involving a serious injury or fatality.) But, that is not the current state of the law, and therefore, random drug testing would seem ill-advised.
FMLA Leave, Quirky Question # 7
Quirky Question # 7:
Several years ago we employed an individual at our auto dealership. He resigned voluntarily. About eight months ago, we rehired him. During the course of the last eight months, he has worked more than 1250 hours. He recently injured his back at home and has missed 13 days of work. Because we cannot afford to have an employee miss that much time, we fired him.
He’s now claiming that we violated the Family and Medical Leave Act (FMLA) and is threatening a lawsuit. We realize that he has met the 1250 hours requirement under the FMLA but he did not work for us for 12 months, another FMLA requirement. Should we tell him to pound sand, and then lawyer-up in case he sues? Will our lawyers be able to obtain sanctions if he pursues this bogus claim?
Roy’s Analysis:
Not so fast!
Believe it or don’t, your discharged employee’s prior employment with your company, even though it was several years ago, enables him to meet the requirements of the federal Family Medical Leave Act (FMLA). As you noted correctly, that statute comes into play when the employee has worked at least 1250 hours and has been employed for at least a 12-month period.
At the end of 2006, the federal Court of Appeals for the First Circuit explored what the 12-month requirement means. (Take a look at the case of Rucker v. Lee Holding Co., d/b/a Lee Auto Malls, No. 06-1633 (1st Cir. December 18, 2006).) In that decision, the First Circuit held that the FMLA was “ambiguous as to whether previous periods of employment count toward the 12-month requirement . . .” (Emphasis added.)
In the case of first impression (i.e., the court had not previously analyzed and decided this issue), the appellate court held that a five-year gap in an employee’s employment with the same employer did NOT prevent him from satisfying the FMLA’s 12-month requirement. The court found that both the statutory language and the language of the Department of Labor regulations were susceptible of differing interpretations. In the Rucker decision, the court decided to give that language an expansive reading that benefited the discharged employee.
While I recognzie the statutory and regulatory language are less than perfectly clear, I thought the Rucker decision was a stretch. The analysis simply did not seem like a common sense interpretation of the statute. Silly me! In 2007, there have been two decisions that make Rucker seem eminently reasonable. In O’Connor v. Busch’s Inc., 492 F. Supp.2d 736 (E.D. Mich. 2007), the federal district court adopted the Rucker analysis, applying it to a fact pattern where there was a 20-year gap between the employee’s initial employment for the company and her rehiring. After working for the company in the 1980s, the employee left her employment. She was rehired in 2005 as the VP of Finance. Later the same year, she was injured in an automobile accident. Suffering from headaches and depression as a result of her accident-related injuries, she requested time off. Although the company advised her that it would provide her time off after the end of the year reconciliation of the company’s books, this proposal was not satisfactory to the employee, leading to her resignation. The employee then sued under the FMLA.
In the words of the modern day philosopher, Ferris Bueller, the court “bought it,” even while paying lip service to the notion that it was “troubled by the potential consequences of permitting Plaintiff . . . to combine periods of employment separated by nearly twenty years.”
Similarly, in the case of Thomas vs. Mercy Memorial Health Center, Inc., 2007 WL 2493095 (Aug. 29, 2007, E.D. Okla.), the employee had worked for the defendant-employer’s predecessor company in 1991, 1992 and 1994. She also worked for defendant in 2002 and early 2003. She returned to work in April 2004 but only worked for about eight months before she was fired for absenteeism relating to her own and her husband’s health problems. The district court combined the prior periods of employment, concluding that the employee had worked for more than 12 months and therefore was FMLA eligible.
In light of these cases, telling your employee to “pound sand” would likely be imprudent. Although it is counter-intuitive, your former employee seemingly has a legitimate claim. So, while I generally endorse the idea of “lawyering-up,” in this instance your resources may be better spent trying to resolve your differences with your ex-employee on an amicable basis.
As for “sanctions,” not this time.
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