On 2/3/17, the Seventh Circuit Court of Appeals affirmed summary judgment for an employer that terminated an employee after he told a supervisor he would not provide a doctor’s note for an absence. The district court had granted summary judgment on the ground that the supervisor did not know that the employee had a disability. The 7th Circuit disagreed with this conclusion, finding that there was sufficient evidence to create a jury question as to whether or not the employee had adequately informed the supervisor of his high blood pressure and loss of vision. The case is Gogos  v. AMS Mechanical System, Inc. (7th Cir. 2/3/17).

Employee terminated for insubordination.  The court affirmed summary judgment on the ground that there was “uncontradicted” evidence that the employee was terminated for his insubordination in refusing what the court perceived to be a reasonable and lawful request for a doctor’s note.  The employee was at work when he became ill from hypertension and his coworkers noticed that his right eye was very red.  Two days later, he experienced a loss of vision and high blood pressure at work. He asked his manager for permission to leave work and obtain immediate medical attention, and asked the foreman to call the company bus, saying “hopefully, I can make it safe.” 

Request for doctor’s note. The foreman asked the employee to bring a doctor’s note when he returned to work.  The employee “became agitated and belligerent.” The foreman responded by telling him that he had been taking too much time off from his job lately without a doctor’s excuse and asked whether if he allowed him to leave to go to the doctor, he would bring in a doctor’s note the following day. The employee responded that he was not sure he could make it to the hospital and did not understand why the foreman was asking for a doctor’s note. 

Conversation escalates: swearing and grabbing. The conversation escalated with the employee telling the foreman that he did not work for him.  The foreman responded that if he came in the next day and did not have a doctor’s note he would “probably be terminated at that time.” The employee yelled that the foreman could not fire him.  He also used profanity and told the foreman that he was not “f##king giving you anything.” The foreman responded: “Well, you might as well just grab your stuff when you go to the doctor’s office, you’re done.”  The unpleasant exchange continued, and when the foreman tried to turn away, the employee grabbed him by the shoulder and said “You cannot f##king fire me.” The foreman responded “Do not put hour hands on me. That’s not tolerated” and “you are fired.” The employee ultimately visited the onsite medical facility which diagnosed him with high blood pressure, and later that day a doctor determined that the employee suffered from chest pain, chronic obstructive pulmonary disease, heart disease and insufficient oxygen reaching part of his brain. 

Request for doctor’s note was reasonable and lawful. The court concluded that there was uncontradicted evidence that the employee was fired for insubordination -- for “swearing, grabbing the foreman by the shoulder and belligerently defying his reasonable request for a treatment note.”    The court commented that the request for a doctor’s note was lawful because employers may require medical evidence of an employee’s asserted disability. Indeed, the court went so far as to say that the employer “was trying to comply with the terms of the statutory scheme by asking for a doctor’s note,” and reasoned that once an employee has reported a disability, the employer has a duty to work with the employee to determine a proper accommodation. The court said that a doctor’s note would have facilitated the interactive process, “especially given [the employee’s] poor English.” 

Lessons for employers?  Where do I began? From my perspective, I am concerned that this case will be interpreted as rewarding bad employer behavior. I do not recommend that employers become confrontational with an employee in the middle of a medical crisis at work, especially where that employee is asking permission to go to the hospital and saying he is not sure he can make it there safely.   Doing so creates not just a risk of liability under any number of laws but also a risk of workplace violence. Very often, employees become violent towards their employers when they feel that they have been humiliated and treated unfairly.    It seems that a more prudent approach here would have been to allow the employee to go to the hospital (indeed, the employer could have considered calling an ambulance or otherwise helping the employee) and follow-up with the need for a doctor’s note later, and not in the heat of the moment.

Legal requirements relating to doctor’s notes. Employers also need to be cautious about asking for doctor’s notes for absences that may be legally protected. In that regard, this employee was not protected by the FMLA because, possibly among other reasons, he does not appear to have met the 1250 hours threshold (though the court does not even mention the FMLA).  The FMLA sets forth specific processes to be followed when requesting medical certification. Further, many of the new local state and local paid sick leave laws prohibit employers from requesting doctor’s notes until there have been three consecutive days of absence. 

Disparate, discriminatory treatment. Finally, there is the risk of a disparate treatment claim if doctors’ notes are not consistently required for all employees. Here, the court noted that the employee was “a Greek and French citizen who speaks broken English” and seemed to conclude that his language difficulties were justification for requesting a doctor’s note. A clever lawyer could have argued that these very language difficulties and the employee’s different ethnicities were the reason that the employee was being subject to more scrutiny than other employees.