Mass shootings have dominated headlines in recent years. From San Bernardino in 2015 to YouTube’s headquarters and the Annapolis Capital Gazette in 2018, workplaces have not been immune from the rise of mass shootings. The Bureau of Labor Statistics reported that 500 workers in America were victims of workplace homicide and 16,890 private-sector workers were victims of nonfatal workplace violence in 2016.
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So what’s an employer to do when an employee reports to his supervisor that he’s having unwelcome thoughts of harming himself and others? For starters, you should adopt policies to prohibit threats of workplace violence. But can you terminate an employee for violating your policy even if the threats resulted from a mental disability? When his mental disability manifests itself as perceived threats of violence, you can still terminate him for violating the policy even though both federal and state laws otherwise require you to accommodate employees with mental disabilities.
This is the situation that was presented to the North Slope Borough Department of Public Works in 2015.
A Supervisor’s Nightmare
An employee who had worked for the department for nearly two years informed his supervisor he was having thoughts of harming himself and others but that those notions were not welcome and he didn’t want to follow through on them. The supervisor was fearful of what the employee might do, knowing from previous conversations that he had access to weapons.
The employee left work to obtain counseling treatment. The supervisor then received a call from the counselor stating that the employee had a list of people he wanted to hurt and that the supervisor was first on the list. After an investigation by the department, the employee was fired for violating its rules against workplace violence.
Alaska Supreme Court Weighs In
The employee filed suit, alleging the department had discriminated against him because it terminated him on the basis of conduct that arose from his mental disability. Although federal and state antidiscrimination statutes prohibit an employer from terminating an employee because of a disability, they don’t extend protection to an employee who is fired because he cannot perform the essential functions of his position, with or without a reasonable accommodation.
Alaska’s Supreme Court hasn’t issued many decisions regarding state antidiscrimination and accommodation standards for employees with disabilities. In this case, the court found that an employee who violates his employer’s workplace violence policy will generally be considered unable to perform the essential functions of the position. The court also found that compliance with a workplace violence policy is job-related and necessary. The employee was deemed unable to perform his position’s essential functions because he made comments to his supervisor indicating he had thoughts about hurting others and allegedly made statements to his counselor that he had a premeditated plan to kill his coworkers.
Considerations when Firing Employee with Mental Disability
Although the confirmation that an employer can terminate an employee for violating its workplace violence policy should be comforting for employers, the court also took this opportunity to caution employers that there are still conditions that must be met. First, the policy must be job-related. The court found that condition would typically be satisfied in the context of a policy against workplace violence.
Next, the conduct cannot be a result of the employer’s failure to provide a reasonable accommodation. In this case, the employee never asked for an accommodation. Therefore, the court didn’t elaborate on how an employer’s duty to provide one may intersect with the application of its policy against workplace violence. Although not discussed by the court, the Equal Employment Opportunity Commission (EEOC) has provided guidance on the accommodation of mental disabilities. The EEOC’s guidance explicitly states an employer may maintain a policy prohibiting workplace violence or threats and may discipline an employee with a disability for violating that policy if it would impose the same discipline on an employee without a disability.
Finally, the court underscored that the employee must be terminated because of his conduct and not simply because he has a disability.
It’s important to remember that the Alaska Occupational Safety and Health Section (AKOSH) and the federal Occupational Safety and Health Administration (OSHA) require all employers to provide a safe and healthful workplace for all workers. OSHA even encourages a “zero-tolerance policy” toward workplace violence. You must be careful to balance your duty to comply with federal and state statutes prohibiting discrimination on the basis of a mental disability with your statutory duty to provide a safe working environment for all employees.
Takeaways
The Alaska Supreme Court has affirmed your ability to fire an employee for violating your policy against workplace violence even if that conduct resulted from his mental disability. The ruling is consistent with case law in other jurisdictions where this issue has arisen.
Elizabeth P. Hodes and Kristal Leonard are attorneys at Davis Wright Tremaine LLP. You may contact the authors at kristalleonard@dwt.com or elizabethhodes@dwt.com.