PIHRA Scope - Fall 2008 - (Page 23) is involved (citing an earlier case where an transfer to a non-safety sensitive posiAn employer’s accomemployee was fired for brandishing a rifle tion temporarily while the employee’s in a crowded bar). medication is regulated. modation duty where In Dark v. Curry County (2006), the Where tardiness or poor attendance plaintiff was a county employee with epiis involved, an employer should consider employee misconduct lepsy. He experienced “auras” in advance adjusting the employee’s start time, to of seizures. One morning he experienced the extent this does not cause an undue is invol ved remains an “aura” but he went to work anyway. He hardship. Accommodation of a secretary unclear. had a seizure while driving a county pickby allowing her to start her work day an up truck. He was sent for a fitness-for-duhour later might be reasonable, but proty examination and found unfit for duty, viding the same accommodation for a reand his employment was terminated. He ceptionist who must be present to answer sued, and the Ninth Circuit upheld his claim. It decided that the phones when the office opens might create an undue because the reason for the plaintiff’s termination was mishardship. Telecommuting must also be considered as a posconduct and the misconduct was related to his disability, the sible accommodation for employees whose jobs do not nectermination was discriminatory. The court maintained that essarily require their physical presence in the workplace. the county had an obligation to explore whether a reasonThe law in this area continues to evolve. Meanwhile, able accommodation was possible. Potential accommodaemployers should use caution when disciplining employtions identified by the court included a leave of absence and ees for misconduct that is related to a disability. ■ reassignment to a different job. In Gambini v. Total Renal Care, Inc. (2007), the plaintiff James J. McDonald is managing partner of the Irvine office informed her supervisors that she had bipolar disorder and of the national labor and employment law firm of Fisher & was experiencing mood swings that she was attempting to Phillips LLP. He will be speaking on this topic at the 51st Ancontrol via medication. When she later was given a pernual PIHRA Conference & Exhibition. formance improvement plan, she threw it across the room and shouted profanities at the managers involved. She then went to her cubicle and began kicking and throwing things. She was fi red, and she sued. She lost at trial but the Ninth Circuit reversed. It held that the trial court should have Tuesday, October 7, 2008 given the jury the instruction that “[c]onduct resulting from 8:00 a.m. - 8:30 a.m. Grand Ballroom a disability is part of a disability and not a separate ground Long Beach for termination.” The court suggested, however, that the Convention Center employee might not have prevailed if (1) the employee was not qualified as a result of her misconduct, (2) the employer can show that it is an “undue hardship” to accommodate The annual meeting of members of Professionals In Human Resources Associamisconduct, or (3) the employee is shown to pose a direct tion will be held on Tuesday, October 7, 2008 at 8:00 a.m. in the Grand Ballroom threat to the health or safety of self or others. of the Long Beach Convention Center located at 300 E. Ocean Boulevard, Long These cases suggest that an employer may no longer terBeach, California, 92802-4825. minate an employee for job misconduct that is caused by a The purpose of the annual meeting is to consider and take action on the disability, unless: following: • It is the result of illegal drug use or of alcohol abuse; A. Ratification of 2009 Officers • It involves “egregious and criminal conduct”; B. Ratification of actions of the 2008 Board of Directors • It involves conduct which poses a “direct threat” to the C. Adoption of changes to the PIHRA bylaws. (Full text of proposed changes to health or safety of others; bylaws is published at www.pihra.org.) • The employer can prove that an accommodation of the misconduct would amount to an “undue hardship;” or All current PIHRA members are eligible to vote at the annual meeting. • The employee is disqualified as a result of the misconduct. An employer’s accommodation duty where employee misconduct is involved remains unclear. Where the misconduct relates to problems with the employee’s medication, or to a condition that might be controlled by medication, the employer should consider a leave of absence or 2008 MEETING PIHRA ANNUAL 14AnnualEditorialAd.indd 1 Fall 2008 PIHRAScope 23 7/29/08 9:25:17 AM http://www.pihra.org
For optimal viewing of this digital publication, please enable JavaScript and then refresh the page. If you would like to try to load the digital publication without using Flash Player detection, please click here.