Two New York jury verdicts highlight risks for employers when denying accommodations on the ground that a diagnosed medical condition presents a risk of danger to the employee or others. Both cases involved police officers. In one case, Pesce v. City of New York (S.D.N.Y. 5/5/16), the jury returned a verdict of $257,762 in favor of the plaintiff who passed a civil service competitive examination for a police officer position but was disqualified by the City because he had previously been hospitalized for a seizure and took anti-seizure medication. The City disqualified him even though the employee presented a letter from his neurologist stating that his seizure disorder had been under control with medication for two years, and that he was able to serve as a police officer.
Blanket policy prohibiting individuals with seizure disorders from being police officers. The employee argued that the City failed to engage in the required individualized assessment of whether or not he could perform the police officer position with or without a reasonable accommodation, and denied him employment pursuant to a “blanket policy” that disqualified all applicants with a history of a seizure disorder who took anti-seizure medicine. The City argued that allowing the plaintiff to serve would pose a threat to his safety and the safety of others, and relied upon research that only 50 to 60 per cent of individuals with epilepsy are able to prevent seizures with anti-seizure medication. They also argued that the nature of police work, including the potential for head trauma, sleep deprivation and noxious auditory and visual stimuli, predisposed a person suffering from a seizure disorder to have another seizure. The jury rejected these arguments and found in favor of the plaintiff.
In the second case, Hoey v. County of Nassau (E.D.N.Y. 5/18/16), the employee was awarded $129,500 (a total of $80,000 in past economic damages and $49,500 for pain and suffering). He had been employed as a police officer, and was hospitalized in November 2009 as result of the onset of bipolar affective disorder. In December 2009, his own psychiatrist cleared him to return to work without restrictions. Initially, the police department psychiatrist recommended that he return to work on restricted duty and he was assigned desk duty. However, in April 2010, the department psychiatrist cleared him to return to work without restrictions. The department told him that he could not return to full duty and told him to wait until December 2010. The employee met with a new department psychiatrist in June 2011 who recommended that his request to return to work full duty be denied.
Jury rejects employer’s arguments regarding risks associated with Type One Bipolar disorder with psychosis. The department argued that the employee’s condition type one bipolar disorder with psychosis indicated the presence of hallucinations, delusions and thought disorder and had a high history of recurrence. The department also said that there was evidence that he had been aggressive while hospitalized. The department said that when the new psychiatrist interviewed the employee, he found him to be “evasive, guarded, and lacked insight into his own condition, including the risk of relapse.” The department also argued that the employee had received a raise while on restricted duty and had the same benefits and health insurance and overtime eligibility. The jury rejected all of these arguments and found in favor of the employee.
Lessons for employers? Employers should be cautious about making generalized decisions that employees with certain health conditions (such as epilepsy or psychiatric disorders) pose an insurmountable risk of danger. This is true even when the positions themselves entail a high degree of risk or danger (such as police officer). If the employee’s physician has submitted an opinion that the condition is successfully controlled (whether by medication or otherwise) and that the employee is able to perform the essential job functions, employers should make an individualized assessment and proceed cautiously.
