Imagine for a moment the employee who seems just a little off — having disproportionate negative reactions to criticism, having strange obsessions with weapons or death, being unusually hot-tempered, demanding, or controlling, or having other odd or erratic behaviors.
Now imagine that despite the employee’s peculiarity, he’s an above-average worker and his job performance is otherwise acceptable. What should an employer do? Is this the type of person capable of committing heinous acts of workplace violence, or is he just socially awkward? Should you terminate his employment for fear that he may commit a violent act at work? What if his unusual behavior is the result of a mental illness protected under the Americans with Disabilities Act (ADA)?
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Americans with Disabilities Act and workplace violence
Background
Workplace violence accounted for 16 percent of all work-related fatalities in 2008. Homicides are consistently among the top four causes of workplace fatalities for employees. In addition to the bad PR, employers often are held accountable for episodes of workplace violence — sometimes for millions of dollars — in the form of lawsuits filed by the victims, lost business and productivity, or regulatory penalties from the Occupational Safety and Health Administration (OSHA).
In fact, workplace violence costs businesses more than $36 billion annually. In an era in which highly publicized episodes of catastrophic workplace violence are becoming more common, it would seem that employers should be carefully scrutinizing their workforce for potentially violent employees — and ousting them in the hopes of being safe rather than sorry.
While it’s true that employers should be vigilant in monitoring their employees, they must be careful not to discriminate against the mentally ill and violate the ADA. For example, taking action against an employee based only on the presumption of mental or emotional instability or failing to accommodate a mental illness can subject an employer to liability under the Act. The ADA can be harsh, punishing employers that so much as mention a worker’s mental or emotional problems to fellow employees or fail to engage in the interactive process of determining whether a worker’s mental illness can be accommodated.
What should you do? First, remember that it is not a violation of the ADA to terminate an employee for violent behavior. The Act doesn’t protect employees who exhibit or threaten violence on the job. While you must be cautious in dealing with employees you fear may engage in violent behavior, the courts have generally allowed employers some flexibility under the ADA.
An Employer’s Guide to Workplace Violence, Terrorism, and Natural Disasters
Taking action
If you become aware that an employee is making threats or has acted in a violent manner, act immediately by placing the employee on leave, preferably with pay, until you complete a thorough investigation. Your first concern should be protecting the safety of your staff. However, be aware that the investigation itself can subject you to potential claims of libel, slander, and invasion of privacy. Unfortunately, there’s no magic formula for balancing those risks. You simply must evaluate each situation objectively, keeping in mind the potential exposure from both the possibility of workplace violence and liability under the ADA.
So what steps should an employer take to effectively balance the rights of the disabled with the fear of workplace violence? First, remember that workplace violence is best prevented by early detection and intervention. Consider the following:
- Screening applicants. Probably the best way to prevent workplace violence is to avoid hiring violent employees in the first place. Conduct careful preemployment investigations of applicants. Follow up on job references, talk to former employers, check on academic credentials and licensure, and ask about gaps in employment. Consider performing background investigations, bearing in mind the limitations of investigations under the Fair Credit Reporting Act (FCRA). In other words, take preemployment screening seriously, and give deference to the objective criteria described above.
- Requiring health exams. While you generally may not ask job applicants about the existence of a mental impairment or ask them to submit to a health exam before making a job offer, you may condition a job offer on the successful completion of a health exam. Consider requiring health exams across the board for all applicants who are offered jobs. Note also that you can require a physical or mental health exam of a currentemployee only when there is a need to determine whether the employee is still able to perform the essential functions of his job. In other words, you must be careful when requiring a health exam of a current employee. Before making the request, you must have a good-faith, objective belief that health problems are having a substantial and injurious impact on the employee’s job performance.
- Creating and enforcing a zero-tolerance policy. If you don’t already have one, implement a zero-tolerance policy for workplace violence and publish it to employees and applicants. Your policy should include a complaint procedure for all employees to report concerns about potential or actual threats or intimidation without fear of reprisal. Also consider implementing a strict no-weapons policy, a drug and alcohol policy, and a conflict-resolution policy. Your policies should be applied as consistently as possible, and your policy should be “zero tolerance,” meaning any offending employees are discharged promptly. When practice doesn’t follow policy and you make exceptions, you dilute your defense.
- Preparing for changes in the workplace. Be aware of workplace events that may trigger violent behavior (e.g., layoffs, restructuring, changes in benefits, terminations, disciplinary actions, or changes in pay). If you are planning any of these events, take precautions to prevent violence before you implement the action.
- Taking threats seriously. In the vast majority of serious violent workplace incidents, the employee displayed antisocial, aggressive, or other disturbing behavior at work. Train employees to make reports under your zero-tolerance policy and to take threats seriously.
- Instituting an EAP. If you don’t already have one, consider implementing an employee assistance program (EAP). EAPs allow troubled employees to seek free counseling for stress, substance abuse, or mental health problems.
- Analyzing the safety of your workplace. Consider making improvements or additions to your workplace such as alarms, additional exits and lighting, visitor check-in procedures, or furniture rearrangement.
State-by-state comparision of 50 Employment Laws in 50 States, including guns in the workplace laws, drug testing, and background checks
Bottom line
There’s no doubt that balancing the possibility of workplace violence with the requirements of the ADA puts employers between a rock and a hard place. However, by becoming familiar with these issues, implementing certain procedures, and educating your workforce on workplace violence and the ADA, you can protect your workplace and comply with the ADA.