Can an Employer Be Blamed For Employee Who Is Unfit to Work?

Andreas Lubitz

By Eric B. Meyer

One week ago today, a Germanwings plane carrying 150 people crashed and killed everyone on board.

Since then, there is mounting evidence that the co-pilot, who was in great physical shape, was also suffering from mental illness which caused him to deliberately steer Flight 9525 into the French Alps.

Why didn’t Germanwings taken preventative steps? Apparently, the co-pilot hid his mental illness from his employer.

Three days after the Germanwings catastrophe, a former JetBlue airline pilot, who was locked out of the cockpit and had to be subdued by passengers, filed a lawsuit (Osbon v. Jet Blue) in federal court against his former employer. He claims that the airline was negligent because it knew or should have known that he was “physically and mentally unfit to fly.”

How could the airline have known?

In his complaint against JetBlue, the plaintiff cites his “disheveled” appearance, inefficiency in performing preflight checks, and overall “disoriented” demeanor as evidence which “clearly demonstrated that something was wrong and that he was not fit to fly.”

Nonetheless, he was permitted to fly.

Once in flight, the plaintiff avers that he “began to rant and rave about the likelihood of a terrorist attack, various imagined dangers, and the need for Flight 191’s crew and passengers to embrace religion.”

The plaintiff was subsequently charged with federal crimes, punishable by up to 20 years imprisonment. (A federal judge in Texas later found him not guilty by reason of insanity). He also had to forfeit his pilot’s medical certificate, without which he can no longer fly commercially.

Was the airline negligent?

The plaintiff now claims that JetBlue unnecessarily endangered the lives of the plaintiff, the crew, and the 135 passengers. Further, he alleges that JetBlue breached a contractual obligation to him and was otherwise negligent for four (4) reasons:

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(a) failure to establish appropriate safety protocols designed to ensure its crew members are fit to fly; (b) failure to ensure that [the plaintiff] was fit to fly on March 27, 2012; (c) failure to replace [the plaintiff] prior to Flight 191’s departure from the gate and ensuing takeoff after he proved unfit to fly; and (d) failure to land Flight 191 promptly after [the plaintiff] proved a danger to himself and others.”

This all begs the question: What obligation does an employer have to protect the workplace from those who are unfit to work?

Employers have a basic duty to act reasonably to avoid foreseeable risks of harm to employees, customers, and the public. If an employee engages in harmful misconduct on the job, and the employer has not exercised such care in selecting the employee, the employer may be subject to liability for negligent hiring.

Indeed, a few years ago, several JetBlue passengers sued the airline for negligence.

Is there an obligation to protect employees from themselves?

But, did JetBlue have to protect the plaintiff from … himself? I’ll admit that’s a question I have yet to encounter.

My best is guess is no. Either way, I eagerly await the outcome of this case.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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