Medication Issues-Was the Conduct Or The Monitoring Of The Medication Within The Claimant’s Control?

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Questions For The Claimant: When Medicine Is Blamed for Poor Attendance or Oversleeping
Questions For the Claimant: When It's Alleged The Bad Conduct Could Only Be Controlled By Medicine
Closing Arguments

Introduction
Sometimes the claimant will say it was medication that caused their oversleeping or tardiness. At other times they'll ask for their conduct to be excused, presumably because the problem was beyond their control and they were taking medicine for it.

For example: In a discharge for poor attitude, the claimant may admit to an anger problem, but also allege he was taking medication for it. 

Likewise, the claimant may bring up that he was taking medicine to excuse the underlying conduct in a poor performance or attendance discharge. i.e. “My indifference was caused by clinical depression” or “My rudeness was caused by a clinical emotional imbalance. “I know I have a problem and have been taking medication for it.”

It is up to the hearing officer to determine if the claimant was discharged for reasons outside of his control or was simply avoiding responsibility. During cross examination, be sure to ask the claimant the questions below.

Strategy
The burden is on the claimant to monitor his medication and do whatever can be done to avoid the discharge. Thus, if the claimant admits to the wrongful conduct but blames the medication, he still has the duty to act responsibly in regard to his medication. Acting responsibly means he cannot sit idly by when there’s reason to know his medicine isn’t working.

For example, the claimant must make an honest effort to respond to the employer’s warnings. Thus, if the claimant has again been warned for the same misconduct, he should know there could be a problem with his medicine. At that point, it’s up to him to change medicines, alter the dosage, or present a valid reason for not doing so.

Find out how long the claimant was on medication, what the dosage was, whether he told the employer he was taking medicine and if there were changes to the medication. Also determine if the claimant was warned about his conduct.  Get dates for everything. For example: an employee taking medicine for anger control should know from his final warning that his medicine may not be working. 

For Attendance or Oversleeping Issues Allegedly Caused By Medicine
Find out if the side effects of the medicine relate to why the claimant was terminated. For example, how did the medicine make the claimant tardy? Then ask questions to see if the problem was within the claimant's control, i.e. how long was she aware of the problem with the medicine and did she act promptly to resolve the problem. Also determine if the conduct stopped for a bit once the claimant was warned, only to resume again later. This would indicate that the conduct is something within the claimant’s control and independent of the medicine.

Questions The Employer Should Ask The Claimant

For Depression, Anger, Or Other Conduct That Only Medicine Could Control
The issue here is the same as in all discharge cases.  It must be determined whether the problem was outside the claimant's control, i.e. whether the claimant can rightfully be held at fault for his conduct. The claimant should never be excused from wrongful conduct simply because he's taking medicine for it. Again, the claimant has the duty to act reasonably and responsibly in monitoring his medication.  For example, if he knows or should know his medication is not working, it is up to him to act on such. This may mean having his medication promptly altered or adjusted once warned of the same misconduct.

Questions The Employer Should Ask The Claimant

Main Points to Address During Direct Testimony of Employer

·   Did the claimant ever improve after being warned (shows whether or not
problem was within their control)

·   Did you know the claimant was taking medication? When did you learn of this?

·   Did he ever ask for accommodations for his condition or because of the medicine he was taking? Did you honor them?

·   Do you know if the claimant ever stopped taking his medication, changed medicines or altered the dosages, etc.

·   At this point, did the problem improve, get worse or stay the same?

Closing Arguments
Medicine Blamed For Causing the Violation (Attendance/Oversleeping)
For Alleged Conduct that Could Only Be Controlled By Medicine

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Closing Arguments-Attendance And Oversleeping

In the present case, the claimant was warned about his attendance/oversleeping and knew it was a problem. The employer further believes that the problem had nothing to do with medication. However, even if the problem was caused by such, this never excuses the claimant from behaving responsibly. The claimant always has the duty to act responsibly with his medication and must take reasonable steps to avoid the discharge. Here the claimant failed to monitor his medication. He was warned numerous times about his attendance/oversleeping and should have known at that point that he needed to do something further to keep his job.

Acting responsibly means he cannot sit idly by when he knows his medicine is jeopardizing his employment. Here, the claimant never sought to change medicines or alter the dosage after being warned. Further, the claimant made no attempt to ask the employer for accommodations (or even tell us there was an issue with his medicine).

Lastly, the claimant chose not to take other reasonable steps such as (using a second alarm clock, leaving home earlier, drinking coffee, asking the employer for a rest break, change of duties, etc). In sum, the claimant had ample opportunity to keep his job. In spite of the numerous excuses offered, the one thing that is clear in this case, is that the claimant had the power to avoid the discharge and didn't.  Therefore, in light of the evidence presented, we respectfully request that unemployment benefits be denied.

Closing Arguments-Alleged That Conduct Could Only Be Controlled By Medicine

In the present case, the claimant argues that his conduct was outside of his control and could only be managed by medication. The employer notes that the problem would stop for a while each time the claimant had been warned of it.  Therefore, we believe the claimant is simply making an excuse for his own bad conduct and is at fault for the discharge.

However, assuming the problem was outside of his control, the monitoring of his medication was not. The claimant always has the duty to act responsibly with his medicine. Acting responsibly means he cannot sit idly by when he knows his employment is in jeopardy.

Here, the claimant never sought to change medicines or alter the dosage after being warned. (if he did change medicines, argue that he was warned on x date and should have done it sooner) Further, the claimant made no attempt to ask the employer for accommodations (or even tell us he was on medication). At the very least, the claimant could have asked us to...(move him way from the coworker, change his job duties, give him another supervisor, etc.)

Lastly, the claimant chose not to take other reasonable steps to preserve his job. The claimant could easily have...(asked for more training, walked away rather than yell, gone to a supervisor, requested a leave of absence, gotten a doctor's note, etc)

In sum, the claimant had ample opportunity to keep his job. In spite of the numerous excuses offered, the one thing that is clear in this case, is that the claimant had the power to avoid the discharge and didn't.  Therefore, in light of the evidence presented, we respectfully request that unemployment benefits be denied.

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