Heightened awareness about gun violence and its perceived connection to mental health issues has prompted employers to consider taking proactive measures to prevent incidents involving their own employees. In seeking to mitigate risk, however, employers need to proceed cautiously so they don’t run afoul of disability discrimination laws.
The Americans with Disabilities Act and many state law equivalents prohibit discrimination against employees with disabilities, but also provide certain affirmative defenses to employers. Generally, an employer may exclude an individual from employment if he or she poses a direct threat to either himself or herself or to other employees. Under the ADA, a direct threat is a significant risk of substantial harm to an individual’s or others’ health or safety that can’t be eliminated or reduced by reasonable accommodation.
At the National Employment Law Institute’s 28th Annual ADA & FMLA Compliance Update last week, both David Fram, NELI’s Director of ADA & EEO Services, and Joshua Stein, a member of Epstein Becker Green’s Employment, Labor & Workforce Management practice, said employers have asked them whether to use the direct threat defense as a means of excluding or removing individuals from employment when they are suspected of having mental disabilities that could lead to workplace violence.
Stein said that employers want to argue direct threat because it seems “clean and easy”—as simple as saying, “Direct threat, they’re out.” But this can be a “huge risk” for employers.
Employers should avoid making assumptions about an employee’s mental health, Stein said. If an employee comes to work irritable or “acting strange,” that doesn’t necessarily mean that he or she has a mental disability, as any number of personal factors could be at play. Further, “just because coworkers are perceiving a safety issue doesn’t mean you’re going to be able to show direct threat,” Fram said.
According to Stein, instead of making assumptions, the employer should say to the employee, “We notice you really haven’t been yourself recently . . . is everything okay?” Asking this question at the outset may provide information that the employer wouldn’t have otherwise had, which may eliminate the concern altogether. If the employee responds that he or she is “fine,” then the employer may monitor the employee’s conduct and performance, but should otherwise refrain from taking further action.
Sharon Rennert, the senior member of the Equal Employment Opportunity Commission’s ADA/GINA Division, cautioned that employers should focus on behavior that happens “on the clock.” Rennert, who provided commentary on the first day of the conference, said that if an employee’s behavior isn’t causing him or her to misbehave at work, fail to meet production standards, or otherwise fall behind, the employer may be on “thin ice” when it comes to proving direct threat.
For employers with lingering concerns, Fram suggested contacting a mental health professional. An employer shouldn’t disclose names or private medical information, but may wish to speak with a mental health professional and say, “Here’s what I’ve observed, is there any reason for us to feel unsafe?”
Direct threat is “not an easy thing for employers to prevail on,” Stein said. “Significant risk” requires that the harm be “highly probable,” not just likely, and “substantial” means that the harm must be “serious.” Courts will generally allow the employer to balance the magnitude of harm against the likelihood of risk—the greater the potential harm, the less likely the risk must be.
As Stein explained, direct threat doesn’t obviate the need to engage in the interactive process. An employer concerned that an employee may pose a direct threat is still required to determine whether there is any reasonable accommodation that would eliminate or mitigate the direct threat.
“As is the case in most of the ADA,” Stein said, “it’s all about individualized assessment.” The employer needs to consider the particular employee, the particular job in question, and the current risk—typically not what has happened in the past or may happen in the future—and will want to document all of the efforts made to reasonably accommodate the employee.
What if an employee actually threatens coworkers or commits an act of violence in the workplace? Those episodes should be handled as disciplinary matters, outside of disability laws, both Stein and Fram said. “If somebody’s threatening somebody else in the workplace, that’s a conduct violation,” Fram said. “You don’t have to start showing this person poses a significant risk of substantial harm, and there’s no reasonable accommodation . . . you don’t have to start arguing that. You can enforce your conduct rules.”
Fram said that employers should be particularly careful to enforce their conduct rules without implicating a disability, where possible. If an employee threatens harm to others in the workplace, and the employer responds by sending that employee for a medical exam, the employer will be “really stuck,” as it may now be on notice of a disability of which it wouldn’t have otherwise been aware. “Don’t start asking why,” Fram said. “Don’t start sending someone to a doctor. Start your process for discipline.”
Employers need not be concerned about enforcing conduct rules. Unless the rules are “ad hoc or very vague,” conduct rules “can be fully enforced, even with employees with disabilities,” Rennert said. In fact, the EEOC has issued guidance on applying conduct rules to employees with disabilities, listing several conduct rules that will all “pass muster”—including rules that prohibit “violence, threats of violence, stealing, or destruction of property” and “inappropriate behavior between coworkers” such as yelling or cursing.
Employers can generally enforce conduct rules even when dealing with an employee who broke a rule “because of a disability,” according to Fram. When such an approach is available to an employer, it should steer clear of relying on the direct threat defense. “Don’t argue it unless you really, really have to.”
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