When an employee seeks to return to work following a failed suicide attempt, there can be concerns about safety–both for the employee and for co-workers. At the same time, savvy employers know that the ADA may provide the employee with legal protections. A recent case in the Western District of Pennsylvania, Wolski v. City of Erie, provides an opportunity to review this potential conflict.
The plaintiff-employee, Wolski, who was the City’s first female firefighter, began to suffer from panic attacks and severe depression following the death of her mother in 2005. She took sick leave for several months, during which she was prescribed multiple medications by a psychiatrist.
After she failed to return to work as scheduled, she was granted additional time off. During this period of leave, she attempted suicide by disabling the carbon-monoxide and smoke alarms and setting a fire in her home. She survived the attempt and was hospitalized until early 2006. The fire was the subject of a criminal investigation.
In early March, when Wolski asked the Chief when she could return to work, he indicated that she was not likely eligible to return until the conclusion of the investigation. On April 3, Wolski ran out of sick leave and was placed on administrative leave. On April 11, after she was formally cleared in the investigation, Wolski was fired. In the termination letter, the Chief explained that Wolski was being fired as a result of her suicide attempt in December:
. . . you started a fire in your residence, having disconnected the smoke detectors and carbon monoxide detectors, and took an overdose of medication as a suicide attempt. Family members extinguished the fire, but the City firefighting crew was dispatched to your home; and you were taken by helicopter to Pittsburgh for emergency medical treatment to save your life.
This incident renders you presumptively unsuited to be a firefighter, as you pose an ongoing threat to the safety of the public, other firefighters and yourself, having set a fire in a residence . . ..
Wolski filed suit alleging that her termination violated the ADA. The case went to trial but a retrial was ordered based on improper jury instructions, so the court’s opinion does not address the question of liability. In the Wolski case, the employer argued, unsuccessfully, that the decision to terminate was not based on the employee’s suicide attempt but because of her having set the fire.
But this is not the usual case. More commonly, the employer is worried that the employee will attempt to harm herself again and, in the course of doing so, may harm others. The EEOC addresses this in its Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities:
35. Does an individual who has attempted suicide pose a direct threat when s/he seeks to return to work?
No, in most circumstances. As with other questions of direct threat, an employer must base its determination on an individualized assessment of the person’s ability to safely perform job functions when s/he returns to work. Attempting suicide does not mean that an individual poses an imminent risk of harm to him/herself when s/he returns to work. In analyzing direct threat (including the likelihood and imminence of any potential harm), the employer must seek reasonable medical judgments relying on the most current medical knowledge and/or the best available factual evidence concerning the employee.
According to the EEOC’s Guidance, the ADA prohibits an employer from terminating an employee because of an attempted suicide. Although the employer’s concerns about safety may be well intended, they are not a basis for an adverse employment decision. One purpose of the ADA is to ensure that employers do not substitute their own judgment about “what is best” for an employee and, instead, let the employee and the medical professionals make those determinations.
Wolski v. City of Erie, Case No. 1:08-cv-289-SJM (W.D. Pa. Sept. 28, 2012).
H/T Mitchell Rubinstein at the Adjunct Law Prof Blog