By William Wiley, June 6, 2017
Questions; we get thoughtful and important questions. The one below came about because of our recent newsletter article that provided guidance as to what to do when a supervisor is confronted with an employee who threatens suicide.
Good Morning – and thanks for your May 17, 2017 newsletter.
Mr. Wiley’s article provided some clear guidance for those scenarios in which a supervisor has been able to conclude that it is more likely than not that the employee is a danger to herself or to others in the workplace. The question that often comes up, however, is how to make that initial assessment. Is it enough for an employee to break down crying and talk about suicide for us to decide that it is more likely than not that the employee is a danger to herself or others in the workplace? What if the employee simply has an emotional meltdown that s/he states is due to being stressed about increased workload and acts out (crying, yelling, kicking office furniture) but does not mention suicide? In short, does the employee need to mention suicide before these options kick in?
If you can provide some guidance on this issue, it would be most appreciated.
And our super-responsive FELTG answer is as follows:
Thanks for your question. This is serious stuff and I’m glad that you’re working on it.
The standard for preventing someone from coming to work is the frustratingly vague standard of “reasonableness.” Would an objective person viewing the facts as they exist at the moment conclude that it is more likely than not (preponderance) that the employee is a danger to himself or others?
Here’s the good news. The supervisor’s judgment that it is unsafe to allow the employee to remain in the workplace is not easily subjected to challenge. That’s because by keeping the employee in a pay status immediately and during the notice period of a proposed indefinite suspension, you have not constructively suspended the employee. Therefore, no MSPB right to appeal and hopefully no grievance rights, either (depends on your CBA and agency grievance policy).
Once the decision to implement the indefinite suspension is issued, the employee can appeal to MSPB. However, by then you should have the employee’s response to the proposal, additional evidence to bolster your conclusion that it was reasonable to exclude him from the workplace.
There is the possibility that the employee could mount a failure-to-accommodate EEO complaint. However, that would be tricky for him to frame, with an answer coming down perhaps years in the future as to whether the supervisor acted reasonably. By then the thing is done and any remedy will most likely be limited.
In addition, employees can always claim that actions like this are whistleblower reprisal, unfair labor practices, or even mistreatment because of veteran’s status. However, those claims place the burden on the employee to prove, and again will be adjudicated far into the future after the immediate danger has been resolved.
Bottom line: These are life and death situations. In the FELTG world, we always err on the side of saving lives of civil servants. With that in mind, we believe the bar for what is reasonable should be set exceedingly low. If this is a topic of interest to you, attend our training workshop Handling Behavioral Health Issues and Instances of Violence in the Federal Workplace July 26, 2017 in Washington, DC.
By the way, if I were in a policy position in an agency, every attorney, HR specialist, and maybe even front line supervisor would have a prefabricated template that proposes an indefinite suspension and demands medical documentation in cases like this. These are emergency situations that require immediate action. We don’t have time to start from scratch when they occur. The template should require only that the employee’s name and the date be inserted. Then, the proposal should be issued post haste. Wiley@FELTG.com