October 26, 2017

An appointing authority's request for "any and all medical records relating to an employee's current state of health" may be too broad and not reasonably tailored to the scope of the relevant medical records


An appointing authority's request for "any and all medical records relating to an employee's current state of health" may be too broad and not reasonably tailored to the scope of the relevant medical records
2017 NY Slip Op 07129, Appellate Division, Second Department

This CPLR Article 78 was filed by an individual [Petitioner] seeking judicial review a determination by the appointing authority, a school district, that Petitioner was guilty of charges of insubordination and incompetence following a Civil Service Law §75 disciplinary hearing and that the appropriate penalty was termination.

The Appellate Division annulled the appointing authority's finding Petitioner guilty of insubordination and vacated the penalty imposed by the appointing authority. The matter was matter was remitted to the appointing authority for new consideration of the matter and the imposition of appropriate penalty, if any, under the circumstances.

The appointing authority had been advised that Petitioner had been admitted to a psychiatric facility after making threats of violence against his former spouse to his psychiatrist. Pursuant to Education Law §913, the appointing authority referred Petitioner to a psychiatrist for a medical examination to determine his mental capacity to continue working as a custodian and directed  Petitioner to provide the psychiatrist with "any and all medical records relating to [his] current state of health."

Petitioner attended the medical examination but did not bring any medical records, contending that production of such records was an invasion of his privacy. This failure resulted in Petitioner by charged with insubordination and incompetence.

The Appellate Division addressed a number of issues, finding:

1. A hearing pursuant to Civil Service Law §75 was the proper means to adjudicate the charge of incompetence in consideration of the fact that the appointing authority's  examining psychiatrist opined that Petitioner presented a potential danger to the students and fellow staff members and was thereby unfit to continue working at the elementary school.

2.  The appointing authority's determination to sustain the charge of insubordination based on Petitioner's failure to provide the requested medical records was not supported by substantial evidence.
The Appellate Division said that there was no evidence the Petitioner failed to attend the medical examination to which he was directed and submit to the medical examination. Neither, said the court, was that any evidence that Petitioner was requested to submit to any additional medical examination by the same or another psychiatrist.

As Education Law §913 does not mandate that medical records be produced as a requirement of submitting to a medical examination, the Appellate Division held that "under the circumstances of this case, the [appointing authority's] determination that Petitioner's failure to provide requested medical records constituted a failure to submit to the medical examination is not supported by substantial evidence."

Further, the court opined that "the appointing authority's request for 'any and all medical records relating to [Petitioner's] current state of health' was overly broad and not reasonably tailored in scope in that it sought medical records beyond those that were relevant to [Petitioner's] mental capacity to perform his duties."

Noting that the request for medical records "lacked any time or subject matter limitation," the Appellate Division concluded that the appointing authority "was in error "to the extent that it found that Petitioner was insubordinate "for his failure to comply with this unreasonable directive."

Finding that the penalty of termination of Petitioner's employment was based on the Board's adoption of the hearing officer's recommendation to sustain both the charge of insubordination as well as the charge of incompetence, the court said that the matter must be remitted to the appointing authority to give it the opportunity to consider the appropriate penalty to be imposed upon [Petitioner] in connection with the charge of incompetence, and the imposition of that penalty thereafter."

Editor's Note:

In situations such as the one confronting Petitioner, a number of disciplinary hearing officers have suggested that the employer consider that the is employee is incompetent within the meaning of §72 of the Civil Service Law, Leave for Ordinary Disability, rather than be deemed incompetent within the meaning of §75 of the Civil Service Law for the purpose of initiating disciplinary action.

Indeed, in Gooshaw v Village of Massena, 216 AD2d 819, the Appellate Division said that it is inappropriate to file disciplinary charges against an individual who is unable to report for work because of his or her conceded disability while in Penebre v Dzaluk, 51 AD2d 574, the Appellate Division ruled that §75 charges for misconduct should not have been served on the employee but that the employer should have proceeded under §72, Ordinary Disability Leave, instead.

The decision is posted on the Internet at:.


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