Jerry’s generally a good employee, but he hasn’t been acting quite right. Co-workers have been taken aback that he’s lost his cool over relatively trivial issues. Although he hasn’t made any overt threats, he gets worked up over political issues outside the workplace and has talked about the number of firearms he owns. A couple of employees have suggested that, since Jerry’s divorce, they’re becoming more and more concerned that he may go off the deep end and do something crazy.
As HR Director, workplace safety ranks at the top of your priorities. But here’s the rub: Jerry has already confided in you that he has bipolar disorder and that it may make his mood erratic at times. He’s taking medication which seems to help and, by and large, he’s been doing what’s expected of him at work. Should we let things with Jerry slide since he might be protected under the ADA? Alternatively, is it ok to predict that Jerry will be a danger to others or himself, and therefore, terminate him? Darned if we do, darned if we don’t . . .
Handling disabled employees who act erratically can be a tough issue. It’s often difficult to balance the duty to accommodate a mentally disabled employee (including protecting the confidentiality of his health condition) with the duty to provide a safe workplace. Although the ADA protects the disabled employee, an employer can be liable under OSHA and the common law (ie. negligent hiring or negligent supervision) for failing to take reasonable actions to prevent workplace violence. For instance, in a case in Illinois, Home Depot employees complained about a manager who would slam down items and scream obscenities. Home Depot required the manager to take anger management classes but didn’t follow up to ensure that he attended. Later, Home Depot got hit with a major lawsuit after the same manager raped and strangled one of his subordinates.
Remember, employers owe a duty under the ADA to accommodate only disabilities—not conduct. Employers aren’t required to accommodate employees who pose a “direct threat” to others. A “direct threat” is defined as a “significant risk to the health or safety of others that cannot be eliminated by modification of policies, practices, or procedures, or by the provision of auxiliary aids or services.” Pertinent factors include the duration of the risk, the nature, and severity of the potential harm, the likelihood, and imminence of the potential harm. Yes, employees with mental disabilities should be accommodated, but that doesn’t mean that companies must place other employees in danger. So long as the employer would impose the same discipline on a non-disabled employee who poses a direct threat, the employer complies with the ADA.
Employers should not base their determination of a “direct threat” on stereotypes or generalizations, but instead, on a “reasonable medical judgment.” Therefore, just because one co-worker may express fear of a co-worker doesn’t mean that the employer should take action, particularly if the complaining employee is hyper-sensitive and doesn’t have a reasonable basis for the fear. Instead, the employer should conduct a thorough investigation and seek a professional opinion. This may include a physical or mental health evaluation. It’s very important to act quickly, and often placing the disabled employee on temporary paid leave during the investigation is a prudent interim measure. Employee Assistance Programs may be a tool.
Companies that have a good faith belief based on a thorough investigation that an employee’s psychiatric condition prevents him from performing the essential functions of his job may terminate the employee. If the employee is on leave during termination, it may be prudent to keep the employee away from the workplace by notifying the employee of the termination decision via telephone or letter. It’s also a good idea to put heightened precautionary security measures in place, such as changing the locks or security access codes, or alerting certain individuals to be on the “lookout.” If termination isn’t warranted, employers, through the interactive process, may allow the employee to take leave to address the disability or change the work environment, such as restructuring the disabled employee’s position.
In sum, companies should make sure that they have a workplace violence policy in place that affords zero tolerance to threats, and they should be proactive in responding to complaints and enforcing the policy. When in doubt, err on side of workplace safety so as to prevent a tragedy, but make sure that you perform due diligence rather than taking a “knee-jerk reaction” that may not be justified and may run afoul of laws protecting mentally disabled employees.
Authored by: David L. Johnson