Hearing officer finds that employee’s failure to comply with an unlawful order is not misconduct for the purposes of disciplinary action

Hearing officer finds that employee’s failure to comply with an unlawful order is not misconduct for the purposes of disciplinary action
Health and Hospital Corporation v A.S., OATH Index #2742/10

OATH Administrative Law Judge Tynia Richard recommended dismissal AWOL charges brought against A.S.,* an employee at the Health and Hospital Corporation’s Bellevue Hospital Center, after the employee declined to report for a “medical clearance” as directed.

Judge Richard found that Bellevue had “improperly conditioned [the employee’s] return to duty upon presentation of medical clearance.”

Bellevue, said Judge Richard, could not, without following the procedures of its Regulation No.1, which the ALJ characterized as “an analog to Section 72 of the Civil Service Law,” compel the employee to undergo an involuntary psychiatric examination based upon a supervisor's unsubstantiated claim that the employee complained that of being ill and then directed the employee to report the employee’s psychiatric condition to the hospital or be barred from returning to work where the employee had displayed no disruptive behavior or performance related problem.

Having failed to comply with the notice requirements of Regulation No.1, the ALJ concluded that the directive to report to the psychiatric examination was not a lawful order. According, Judge Richard ruled that A.S.'s failure to appear for the examination was not misconduct.

* The decision notes that “Respondent’s full name is being withheld for purposes of publication in order to protect [the employee’s] privacy because this decision discusses [the employee’s] medical records which include matters of a personal nature. This accommodation is being made sua sponte [on the ALJ’s own motion] as the parties have not requested it.”

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2742.pdf
NYPPL