Assess Potential Violence Promptly but Carefully Case highlights tension between accommodating mentally ill workers and providing a safe workplace

By Roy Maurer Jan 29, 2015
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Is an employee who admits to violent thoughts in the workplace a clear-cut case for termination? Not always, as a pair of companies recently found out.

Spherion Staffing, a national staffing agency, and Tech Data Corp. in Swedesboro, N.J., may have violated the Americans with Disabilities Act (ADA) for firing a worker who informed them that he was “unstable,” diagnosed with depression and having homicidal thoughts, according to a recent federal court ruling.

The U.S. District Court for the Eastern District of Pennsylvania ruled Jan. 13, 2015, that the terminated employee can proceed with his disability discrimination claims.

Judge Gerald A. McHugh wrote that the case tests “the outer bounds” of the ADA in the context of workplace violence and requires consideration of “two competing but equally valid public-policy interests”—the need to accommodate and treat mentally ill workers and the need to provide all workers with a safe workplace.

McHugh cited the three-week gap between the employee first telling security at Tech Data that he was having homicidal thoughts and his termination. During that time, he repeatedly informed his employers about his diagnosis for depression and need for medical treatment. He specifically asked about Spherion’s insurance coverage. Given the timing of the termination, “discovery is necessary to determine whether [the employee] was fired for his alleged misconduct rather than his disability,” the court ruled.

“Both the ADA and state disability discrimination laws permit employers to terminate employees for disability-related misconduct, as long as the termination is not because of the disability itself,” said Alexander Berg, an attorney with Kollman & Saucier, P.A., based in Timonium, Md. “When an employer’s explanation for its disciplinary action is found to be pretextual, however, disability claims may proceed.”

The employers argued that “proclivities towards violence” plainly disqualify a disabled person from protection under the ADA. In fact, many employers have zero-tolerance policies regarding workplace violence.

“As we have seen in many workplace violence cases where the perpetrators leaked information to others about their subsequent plans, many times their thoughts move from ideas to words to actions,” said Steve Albrecht, PHR, a workplace violence prevention expert and trainer based in San Diego. “This includes Facebook or other social media postings, including ‘hit lists’ or ‘manifestos,’ notes to co-workers or supervisors, phone messages, or direct or third-party threats.”

On the other hand, if, as McHugh writes, “a disabled employee who asks for help should be automatically terminated, the purpose for enacting the ADA” is defeated.

“My impression has always been that workplace violence threats trump ADA protection, as does the use of illegal drugs,” Albrecht said. “The court’s response now suggests that employers must interpret the context of an employee’s threatening language—something even mental health clinicians have difficulty doing with accuracy—and predict the future. This is an extra pressure they don’t need.”

Experts agree that the company should have used more of a structured process with the employee—including offering paid medical leave and requesting a fitness-for-duty evaluation—and should make an HR decision using data instead of emotions.

“Once the immediate threat is dealt with, slow down,” said Hector Alvarez, founder and president of Alvarez Associates, a workplace violence prevention firm based in Northern California. “Leverage your organization’s different disciplines—HR, legal, risk management—to form a more comprehensive understanding before taking employment actions,” he added.

This process protects the workplace while also “not taking premature discipline that may be inflammatory to the situation,” Berg said.

“Of course, if the case had ended in lethal violence against himself or others, the company would also face a civil suit from victims or their families or the subject’s family, saying they didn’t do enough to stop him,” Albrecht said. “The purpose of the ADA is to prevent discrimination against employees with physical or mental disabilities and to reasonably accommodate them. This new ruling adds another element of doubt into what is ‘reasonable,’ ” he said.

Context vs. Content in Assessing Risk

The case underscores the importance of employers conducting prompt but thorough investigations when faced with perceived threats of violence, Berg said. “The decision to take action against an employee should be based on a case-by-case assessment of risk, rather than stereotypes about mental illness,” he advised.

HR should place much more emphasis on understanding context rather than content as part of a violence risk assessment; however, “the time to split the fine hairs between violent ideation and violent intentions is not in the workplace,” said Alvarez.

“Stabilizing the workplace and providing for the safety and well-being of all employees” is the immediate task. “Determining if an employee’s statements trigger ADA protection [or] constitute an ongoing threat or both, is complicated” and will need more deliberation, he added. “The more unusual the situation is, the more important it is to slow down and fully evaluate it and the potential consequences of our actions.”

Violence risk assessments are by their very nature high risk and benefit from as much data as possible, Alvarez said. “There is a distinct difference between a person making a threat and actually being a threat. From a workplace perspective it’s appropriate that a person making threatening statements should face strong disciplinary actions and maybe even termination. However, it’s extremely important to gather as much information as possible to better understand the potential for violence to occur. As we have seen from other incidents, separating an employee from the company does not mean the individual is no longer a threat,” he said.

Alvarez suggested resisting the urge to immediately cut all ties and consider offering access to employee assistance programs and mental health care. “If a company has the ability to extend these benefits, they may help avoid an incident. In the case discussed here, the company removed the one thing the employee seemed to be reaching out for—mental health assistance.”

Roy Maurer is an online editor/manager for SHRM.

Follow him @SHRMRoy

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