Managing employees with mental disabilities can be challenging—especially when the workers pose a threat to others’ safety. If you take preemptive action, you can get sued under the Americans with Disabilities Act, but if you don’t, you risk the tragic consequences of a violent incident. Two recent cases provide guidance on how to handle potentially dangerous workers—before problems erupt.
Blaster Has Physical And Mental Problems
Dennis Borgialli worked as a blaster for Black Thunder Mine in Gillette, Wyo., handling millions of pounds of explosives. He complained of health troubles including dizziness, blurred vision and nausea brought on by migraine headaches. And, after a negative performance review, he harbored a grudge against his supervisor and threatened suicide.
Concerned about Borgialli’s many problems, the company ordered him off the job and insisted that he be examined by a psychiatrist, who found he couldn’t safely perform his job. Borgialli then sought his own exam, which concluded that he could do the required work. When the company requested a third evaluation to resolve the conflict, Borgialli balked and was terminated.
Borgialli sued, claiming Black Thunder regarded him as disabled, even though he wasn’t, and therefore had to accommodate him under the Americans with Disabilities Act.
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Worker Posed Direct Threat
The Tenth Circuit Court of Appeals sided with Black Thunder and dismissed the lawsuit.The court explained that you don’t have to employ a worker who poses a direct threat to the health or safety of others that can’t be eliminated or reduced with a reasonable accommodation.
In this case, the court said it was reasonable for Black Thunder to preclude Borgialli from returning to work until it received medical assurance that he was no longer a safety risk, especially because his job was dangerous. And the employer was justified in requiring a third evaluation to resolve the conflicting psychiatric reports.
The court said that the ADA does not require employers to take unnecessary risks with a mentally or physically impaired employee, and concluded that Borgialli wasn’t qualified to work as a blaster because he was a direct threat to others.
Investigator Has Severe Depression
The second recent case involved Janice Palesch, a Missouri Commission on Human Rights investigator, who took medication for severe depression. Her work performance began to deteriorate, and she expressed concern that her depression was deepening. Plus, after taking a day off because she was depressed, she told a co-worker that if she had come to work she “could have shot somebody.”
Employer Orders Psychiatric Exam
Palesch’s supervisors put her on paid leave and ordered her to undergo a psychiatric exam. When an independent doctor said she couldn’t perform the essential functions of her job and posed a threat to herself and others, Palesch was terminated. She sued, claiming she was harassed and fired based on her race and sex.
Court Throws Out Lawsuit
The Eighth Circuit Court of Appeals dismissed her case.The court found no evidence of harassment or discrimination and said it was reasonable to put Palesch on leave until the extent of her depression was determined.
Although Palesch claimed that her statement about shooting someone was merely a joke, the commission could not afford to ignore it given her history and other publicized workplace violence incidents, the court said. And Palesch’s failure to meet job performance requirements together with the psychiatrist’s opinion provided legitimate nondiscriminatory reasons to terminate her.
Preventive Strategies
You don’t have to wait until tragedy strikes to take action when an employee’s mental or physical condition affects their ability to perform their job and is a potential threat to others. Here are some steps to take:
- Get a professional evaluation. If you believe someone can¹t perform their job’s essential functions because they are mentally impaired or may threaten others’ safety, you can remove the employee from their position until they pass a fitness-for-duty exam. You can insist on an independent evaluation and verification of their mental and physical health and fitness to perform their job. Note that you can’t take action if workers are only a threat to themselves.
- Carefully draft job descriptions. Provide doctors with a detailed job description so they can thoroughly evaluate the worker’s ability to perform essential job functions. Include the position’s psychological and safety requirements in your report.
- Evaluate possible accommodations. Consider accommodations including a modified work schedule, a transfer to a less stressful position or moving the person’s workstation. You can’t terminate a worker if a reasonable accommodation would enable them to perform essential job functions and remove the direct safety threat.