Recent Decision Explores Issues of Mental Disability and Violence in the Workplace

Friday, July 24, 2015

A federal district court recently grappled with whether an employer’s termination of an employee for engaging in violent behavior was lawful, where the employee’s behavior was related to an underlying mental impairment.  Joining other courts, the district court found that the employer was justified in letting the employee go for unacceptable workplace behavior, even though the conduct may have resulted from her underlying conditions with anxiety and depression.

In Felix v. Wisconsin Department of Transportation, Felix was employed as a customer service agent and driving test proctor.  Her job involved both working behind a counter to process driver’s license applications, and administering road tests.  During her employment, Felix experienced anxiety at work that resulted in panic attacks.  Her employer accommodated these incidents by letting Felix take breaks to do breathing exercises and calm down.

The incident leading to Felix’s termination occurred after she suffered a particularly acute panic attack, when a supervisor found her lying on the floor and crying loudly while trying to speak.  She had visible cuts on her wrist and could be heard saying things like “everybody hates you” and “they want to get rid of you.”  After an ambulance arrived and Felix calmed down, she was moved to a break room.  The next day, Felix was informed that she would need to undergo an independent medical exam to determine whether she was fit to return to duty, as the DOT was concerned both for her own safety and the safety of applicants with whom she drove.  Ultimately, the medical examination concluded that Felix remained at increased risk for potentially violent behavior toward herself and others.  Based on those results, the DOT terminated her employment on the grounds that she was unfit for duty.

Affirming the DOT’s decision, the court determined that it was undisputed that Felix’s termination was due to her behavior, which led the DOT to determine she was unfit for duty.  The court noted that, absent a disability, the DOT would have been justified in terminating any employee who engaged in similar behavior.  Although Felix argued that the DOT was wrong in its assessment of her fitness for duty, the court explained that was beside the point:  the issue was not whether the DOT’s reliance on the medical report was wrong, but whether the DOT’s explanation for her termination was dishonest and pretext for terminating her because of a disability.  In short, the court found that the DOT was not required to tolerate Felix’s conduct, and that her termination was due entirely to unacceptable workplace conduct, not because of a disability.

For Employers, Recent Decision Highlights Complexity of Medical Marijuana Laws

Friday, July 17, 2015

Last month, the Colorado Supreme Court affirmed the right of an employer to terminate an employee who tests positive for marijuana in violation of the employer’s drug policy.  Although the impact of the decision is largely limited to Colorado, as the case involved only the interpretation of Colorado law, it nonetheless highlights the complex legal landscape that employers face as they navigate both state and federal laws governing marijuana usage.

The employee in this case used medical marijuana off-duty to ameliorate a health condition, a practice permitted under Colorado’s constitution.  At the time of testing, the employee was not under the influence of marijuana, nor was there any evidence that he had used marijuana at work or had been under the influence at work during other times.  The employer, however, had a zero-tolerance drug policy, and when the employee tested positive, it terminated his employment.  The employee sued, claiming that his termination violated Colorado’s off-duty conduct statute, which provides that employers may not terminate employees for engaging in any “lawful activity off the premises of the employer during non-working hours.”

The key issue for the Colorado Supreme Court was whether the employee’s medical marijuana use was a “lawful activity.”  Notwithstanding Colorado’s constitutional amendment allowing for the use of medical marijuana, the Court concluded that for an activity to be “lawful” under the off-duty conduct statute, it must be lawful under both state and federal law.  Because marijuana use remains unlawful under federal law, the Court held that the employee had not engaged in a “lawful activity” that prohibited his termination.

Because only Colorado law was at issue in the Court’s decision, the case is not likely to have immediate impacts in other jurisdictions with medical marijuana laws.  Unlike Colorado, for example, Maine’s medical marijuana statute provides certain employment-related protections that, for obvious reasons, were not at issue in the case.  Nonetheless, the case highlights the continuing divide between federal and state law and the need for employers to proceed with caution in this area.

Final Right to Work Blog (127th Maine Legislature)

Thursday, July 2, 2015

Efforts to pass “Right to Work” legislation in Maine have been defeated for the second time in four years. Three bills that were able to survive on minority reports after being heard and worked by the Legislature’s Joint Standing Committee on Labor, Commerce, Research, and Economic Development were defeated in mid-June by both the Democratic House and Republican controlled Senate.

LD 489, a very conventional Right to Work piece of legislation, was sponsored by Rep. Lawrence Lockman (R-Amherst) who has aggressively championed the policy for years. After more than an hour of heated floor debate in the House of Representatives the majority “Ought Not to Pass” motion was accepted by a vote of 90-52. Eleven Republicans representing swing districts and communities with high union density sided with Democrats.

LD 404 (a bill to prevent public employers from acting as collections agents) and LD 1319 (legislation to restrict public sector union officers from being compensated for days spent on union activities) were also killed by slightly narrower votes when they picked up one and four additional Republican votes, respectively.

Maine’s State Senate is controlled by Republicans who wield a 20-15 majority and so it was somewhat surprising when LD 489 was also killed in that body with a 21-14 vote. LDs 404 and 1319 suffered similar fates.

Previously, the conventional wisdom to observers had been that the Republican Senate would advance an “Ought to Pass” minority report, the Democratic House of Representatives would adhere to killing the bills, and they would eventually die in non-concurrence between the bodies. It appears that strategically organized attempts to beat back the legislation, led by the Maine AFL-CIO, were extremely successful in identifying and securing votes from Republican state senators in high-union density districts.