DEALING WITH THE THREAT OF VIOLENCE IN THE WORKPLACE
by Stephen Linzer
If one of your employees calls you an obscene name and threatens to kill you, firing him or her might seem to be the appropriate thing to do, but it isn't.
A federal district judge in Michigan ordered a company to reinstate with back pay a worker after she was fired for calling her supervisor a 'bitch' and talked of 'taking a .38 and blowing her away.' The offending employee suffered from depression, a condition that qualified her for protection under the Americans with Disabilities Act (ADA). The court ruled that ADA regulations prohibited the company from firing her, even though her depression interfered with her job performance.
Background
Prior to her threat, the employee's depression had caused her to take a leave of absence and go on short-term disability. Although her job was not the sole cause of her depression, she later contended it contributed to her condition.
A month into her disability leave, she underwent a psychiatric evaluation to help the company determine whether she was still disabled. During the exam, she made the threats against her supervisor, saying, 'I hate the bitch,' 'She is living on borrowed time and doesn't know it,' 'I have killed her a thousand times in my mind,' and the most significant threat of 'blowing her away.'
The psychiatrist's report led the company to fire the employee. She then sued for wrongful termination under the ADA. The company countered that she was fired because of her threats, not because of her disability.
But the court linked her statements to her disability in its statement: 'The statements made by the plaintiff did not disqualify her from employment . . . and terminating her on the basis of the statements was equivalent to terminating her because of her disability.' (From the court case Collins v. Blue Cross Blue Shield of Michigan, No. 95-CV-72192-DT.)
No-Win Situation?
This ruling may put employers in a no-win situation. If an employer fires an employee because she threatens to kill a co-worker, the employer might be successfully sued. However, if the employer does not fire the employee for fear of being sued and then the employee makes good on the threat, the employer may be liable for the homicide. Even this seemingly absurd ruling provides leeway for companies in dealing appropriately with a mentally disabled employee. Knowing how much leeway exists requires a basic knowledge of the ADA, including these key areas:
- The requirement that employers make 'reasonable accommodations' for disabled employees
- The criteria for establishing a mental disability
- The employer's options in rejecting or dismissing problem employees
Reasonable Accommodations
In this court case, no evidence supports the claim that the employer tried to reasonably accommodate the employee's condition. This deficiency may have been the company's undoing. Reasonable accommodations for mental disabilities may include job restructuring, part-time employment, modified hours, reassignment to vacant positions or to another supervisor, unpaid leave of absence to permit the employee to obtain treatment, or a flexible work schedule to permit an employee to attend outpatient psychotherapy sessions during the workday.
Companies are not required to provide paid time-off for an employee with a disability. The employee can elect to use accrued vacation or sick leave. Reasonable accommodation of a disability does not require that companies excuse misconduct on the job, as long as similar misconduct by other employees is not tolerated.
Companies are not required to make an accommodation that would cause it to suffer 'undue hardship,' defined under the ADA as 'an action requiring significant difficulty or expense.'
DETERMINATION OF MENTAL CONDITION
To determine whether a particular mental or emotional condition is covered by the ADA, make these inquiries:
- Does the condition constitute a 'mental disorder' as defined by the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS?
- Does the condition 'substantially limit a major life activity' of the individual?
A 'yes' answer to either question means that the employee's condition is probably protected. Workers suffering from general stress because of job or personal life pressures would not be considered disabled. However, if they are diagnosed by a psychiatrist as having an identifiable stress disorder, their impairment may qualify as a disability.
Employer Rights
Even with the many restrictions, companies still have some flexibility to investigate an applicant's background thoroughly. A firm can avoid hiring problem employees by evaluating the candidate's application, interview, and administering psychological testing.
The company's employment application should include a certification that all information given is complete and accurate. Resumes should not be accepted in lieu of applications.
In general, the ADA prohibits pre-employment inquiries concerning whether or to what extent the applicant has a disability. But the employer can ask questions relating to an applicant' s ability to perform the 'essential functions' of the job.
The ADA also allows companies to require employees to undergo a 'fitness-for-duty' exam if they develop a mental disability that affects their ability to perform the essential functions of their job. When an employee behaves in a violent manner, suggesting a danger to themselves or others; or when a mental disability renders an employee unable to perform the essential functions of the job, a mental examination is warranted. The examination should be conducted by a psychiatrist or clinical psychologist. Companies may fire an employee who refuses to submit to a fitness-for-duty examination.
Workplace Violence
Workplace violence is a growing problem that can subject an employer to personal harm and substantial liability for negligent hire or negligent retention. Fortunately under the ADA, employers can require that employees not pose a direct threat to the health and safety of themselves or others. Therefore, employers may terminate an employee if his or her threat cannot be eliminated through a reasonable accommodation.
But employers cannot fire an employee based solely on the possibility of a violent attack. The risk of harm must be substantial, and-when a mental or emotional disability is involved-the employer must identify the specific behavior on the part of the individual who poses a direct threat. The Equal Employment Opportunity Commission that administers the ADA suggests that employers look for guidance on this issue from a health-care professional with training in the disability in question.
CONCLUSION
A company's ability to defend its actions regarding erratic behavior or evidence of mental or emotional illness is improved if, before firing an affected employee, the company makes a good-faith effort to make a reasonable accommodation for the employee's condition. The employer stands a better chance of defending itself against an ADA-related employee complaint if it can show that despite its efforts to accommodate the disability, the troubled employee was still unable to perform the essential tasks associated with the job.
Stephen Linzer is the managing attorney of the Phoenix, AZ firm of Linzer & Ditsch, PC, which assists business and property owners with transactional, litigation and corporate legal needs. This article was reprinted with permission from the Risk Management Letter, published by Griffin Communications, Inc. and Warren, McVeigh & Griffin, Inc.