Determining Response to a Threat of Harm
Q. We have an employee who recently told several coworkers he “hates” his team members and could “blow up the building" but would give “advance notice” to people he likes. We have contacted law enforcement and placed him on Family and Medical Leave Act (FMLA) leave. Because he has psychological issues, do we need to provide additional accommodations to make sure we aren’t violating any Americans with Disabilities Act (ADA) regulations?
A. The EEOC has considered many potential psychological issues like this and has developed guidance for employers concerned with their obligations under the ADA. On a most basic level, the law allows an employer to discipline an individual (like placing them on leave), even an individual with a mental disability or one regarded as having a disability, for violating a workplace conduct standard that is job-related for the position and is consistent with business necessity. This remains the case even if the misconduct results from the disability. The ADA does not prevent you from maintaining a workplace free of violence and threats of violence.
The ADA also has a “direct threat” defense which allows an employer to lawfully exclude an employee from employment if the employee poses a direct threat to the safety of others in the workplace. This defense has been developed from a Supreme Court decision reconciling the importance of prohibiting discrimination against individuals with disabilities while protecting others from significant health and safety risks. In its decision, the Supreme Court allowed an employer to base an action on an employee’s medical condition that posed a significant risk of communicating an infectious disease to others. For purposes of this ADA defense, the direct threat must be a significant risk of substantial harm to the health or safety of the individual or others (not just a slightly higher risk than normal) that cannot be eliminated or reduced by a reasonable accommodation.
The defense requires an individualized assessment based on a reasonable medical judgment that relies on the most current medical knowledge or the best available objective evidence. Factors that must be considered include (i) the duration of the risk posed by the condition; (ii) the nature and severity of the potential harm that might result; (iii) the likelihood that the potential harm will occur; and (iv) the imminence of the potential harm. This determination cannot be based on unfounded fears or stereotypes but must be a genuine threat.
If the employee returns from FMLA leave and additional threats are made, you will need to make an individualized determination about the specific risk posed by the behavior and consider whether any reasonable accommodations are available to enable the individual to safely perform the essential functions of the position moving forward before deeming him unqualified.
To discuss this or other employment-related matters, contact Jason Mau at (208) 562-4900 or send an email to jmau@parsonsbehle.com.
