Every year at this time, Acme schedules its annual plant shutdown. The company’s ace schedulers already have been working overtime to finesse the accumulated pile of major maintenance work orders into several neat work packages that can be completed during the two-week window of opportunity. These times are stressful for every Acme employee involved with organizing the outside contractors, vendors, in-house maintenance crew and plant engineers. And the person most under the gun from several angles is Rocky Schorrs, the head scheduler. Work days sure are long this time of year.
Mark Herbouie, one of Acme’s schedulers, is a single father raising a young son. Because Acme operates continuously, Mark and many other employees work rotating shifts and are on call for one or more weekends each month. Mark finds that trying to schedule his life under these circumstances can be stressful. Fortunately, he found a day care facility for his son that is willing to accommodate his variable work times. Now, Mark needs to find some time to catch up on his sleep.
Mark has other difficulties in his life, including a battle with epilepsy. He’s among the 70% of epileptics in the U.S. who can control the seizures with one of a dozen or so approved medications. His medical condition is common knowledge at the plant, and his co-workers have been trained to respond appropriately should Mark suffer a seizure at work. They’re also generally tolerant of his occasional periods of frequent absences and try to pick up the slack as best they can.
Acme also is aware that commuting has become difficult for Mark, as he brought in a letter from his neurologist that said he shouldn’t be driving a self-propelled vehicle such as a forklift or car. In fact, Acme has been paying Mark’s cab fare if it was necessary to have him on-site during one of his on-call days. Even though he owns a car, Mark commutes via public transportation, which operates primarily during rush hours and is rarely in evidence at other hours.
Lack of sleep and stress can trigger an epileptic seizure. Mark awoke the morning of one of his regular work days experiencing the headache and other subtle sensations that, for him, predict an impending seizure. Before things got out of hand, he dialed Acme to call in sick.
Rocky, his boss, happened to take the call that morning. When he realized what Mark wanted, he rejected the plea immediately and demanded that Mark get to the plant ASAP. Rocky bellowed that Mark’s presence was critical during this turnaround project, and this wasn’t even one of his on-call days.
Mark told Rocky that he felt a seizure coming on and he couldn’t come in. By the time he got his son to day care, the buses wouldn’t be running and he’d be forced to drive to the plant. Mark reminded Rocky that his doctor strongly advises against driving.
Rocky said he already knew this, but it didn’t matter. All that mattered was the turnaround. Rocky then warned Mark that his job was in jeopardy because of the time he had been absent so far this quarter.
Mark said he would get to the plant as soon as possible. This was going to be another stressful day, that’s for sure. After making emergency arrangements with the day care facility, Mark was running late. Traffic was bad that day, and the trip to the day care facility took longer than normal. After dropping his son off, Mark headed for the plant.
En route, he had a seizure. Despite his attempts to stop the vehicle on the side of the road as quickly as possible, he lost control of the car and collided with a parked truck. The impact left him with serious, permanent injuries.
Ultimately, Mark filed a two-count suit against Acme and Rocky, alleging breach of duty to protect him from foreseeable harm and the intentional infliction of emotional distress. Mark argued that Rocky knew of his epilepsy and his need to drive to the workplace, which was known to be counter to the best medical advice.
How could this situation have been prevented? Does it make sense for Acme to have any concern or responsibility for Mark’s condition? Should Acme have accommodated Mark’s transportation problem? Are there any viable alternatives to Acme demanding that Mark be present at this important time, regardless of his physical condition? Is there any reasonable way to get Mark to the plant without the need to drive?
An academician says:
My first question is why is Mark driving at all? And why does he have a car? If the medical expert said that he should not be driving a car, then I think he should not be driving a car. Taking his son to day care or anyplace else is endangering his son’s life, and that of anyone else on the street. That’s irresponsible, and I suspect, illegal.
As to Rocky, I wouldn’t have suggested anyone come to work given that the conditions for a seizure are present. Why would you insist that an employee who is ripe for a seizure come to work? Aside from the question as to what mode of transportation he uses to get to Acme, his presence at Acme is a danger to himself and to others. Bottom line -– keep him away from Acme, at least until his condition improves.
The question here is what could Acme do to make a “reasonable accommodation” (as required by federal law) to Mark’s medical problem? There are no easy answers to this question. However, given that Mark’s attendance is unpredictable, he should not be put in a job that absolutely requires him to come in when called. That’s unfair to both Acme and Mark. One possible option would be to move him to a job where there is ample flexibility, or people available to back him up, should his symptoms flare up.
Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
[email protected]
An attorney says:
Stress does not excuse Rocky Schorrs’ immoral and deplorable conduct. How Mark Herbouie might fare in the courts with his claims is less clear. Most states require conduct that “goes beyond the bounds of human decency” to recover under a claim of intentional infliction of emotional distress. The vast majority of these kinds of claims are tossed out by the courts because the conduct simply is not deplorable enough. Rocky’s insistence that Mark report to work, despite the onset of a seizure, knowing that he was required to drive in contravention of his doctor’s orders, comes very close to the line, and Mark may well recover under this theory. Mark’s suit against Acme for failure to protect him from foreseeable harm is more likely to succeed.
There is never a situation in which an employer is justified in requiring an employee to do something that is contrary to his or her doctor’s orders. At the very least, if Rocky insisted on Mark reporting to work, he should have offered to pay for cabs for Mark to take his son to day care and himself to work so he did not have to drive.
Rocky’s threat to fire Mark if he did not report to work may have been a hollow one. If Mark’s absences were due to his epilepsy, they would be covered under the Family and Medical Leave Act as intermittent leave for a serious health condition. Under that law, an employer cannot discipline or terminate an employee because he has used leave. Since an employee is entitled to 12 weeks of FMLA leave per year, that would have allowed Mark 60 days off in a year due to his epilepsy. On the other hand, if Mark’s absences were due to other reasons, such as child care or transportation problems, Acme could legitimately have disciplined or terminated Mark based on these days absent.
While Rocky may have felt his ultimatum that Mark report to work was going to keep his project on schedule, I suspect that his ultimatum actually caused far more delay in the work than Rocky ever could have anticipated.
Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
[email protected]
A corporate consultant says:
Although Acme has bent over backwards to accommodate Mark's illness, they overlooked two important issues.
First, it simply isn’t smart to deploy an epileptic in a job function that increases the risk of a seizure. Once Mark was diagnosed, and it was clear that high stress could trigger a seizure, Acme should have redeployed Mark so they wouldn't have to rely on him as the head scheduler. Had they done so, his absence on the day in question wouldn't have been such a big deal, and this entire case would likely have been prevented. This is the crux of the whole case. Acme continued to rely on a known-to-be unreliable resource for a crucial function. Mark's absence during stressful times was so predictable that Acme has no excuse for not having already developed an alternative.
Second, Rocky made a bad mistake and put Acme at risk of litigation by saying that the doctor's advice "didn't matter." Bad move on Rocky's part. If he really needed Mark on-site, he was being penny-wise and pound-foolish to further exacerbate the risk of a "disabled" Mark. Securing a "functional" Mark was available for cab fare. I'm not suggesting Acme was obligated to pay for Mark's transportation, but if Rocky needed Mark on-site and knew Mark was particularly vulnerable to a seizure that day, he made an incredibly poor judgment call in requiring Mark to get himself to work.
However, Mark knew (and acknowledged knowing) that he should not have gone to work that day. It's not Rocky's job to make life management decisions for Mark. Adults are responsible for making their own life choices. Capitulating to Rocky's threat was extremely poor judgment on Mark's part, and in my view, constitutes adequate negligence to mitigate Acme's culpability in this case.
Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
[email protected]