| This is a summary of one of an important aspect of employment regulation in the United States and its territories. Employers should consult an attorney who specializes in labor and employment law about questions applicable to your industry. |
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Workplace Violence and the ADA |
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In some cases an employer may be given hints that an employee poses a threat to co-workers, but the employee in Massachusetts had not given any reason for concern. In fact, before he opened fire, he was amiable and had given co-workers no reason for concern. Even if he had shown signs of mental illness, he would have had some protections under the Americans with Disabilities Act (ADA). With some careful preparation, you can effectively balance your concerns about violence in the workplace with the rights of the mentally ill. Once you’ve articulated why you think certain employees would be a threat, your next step is to determine what you can do about it. The cases are clear that employers can ask people to submit to physical and mental examinations to show that they can perform the essential functions of the job. The exams must be post-offer, pre-employment, and there may be risks. Asking for the exam may aggravate a person’s mental illness, with the result that the employer could be facing a claim of intentional or negligent infliction of emotional distress. The person also may file a defamation claim if the supervisor approaches the employee and says something like: "We think you’re mentally ill and may blow everyone away. Come here and talk to this doctor we’ve got." You must consider two things -- first, when you believe an employee is a danger, you must take appropriate steps to get the employee out of the situation, even going so far as to suspend them -- with pay if necessary -- while you investigate. Second, you should review policies on bringing weapons into the workplace or develop a policy if you don’t have one. Employees are generally reluctant to reveal that they are having mental problems or receiving psychiatric treatment. In most cases, employers have no reason to know. But if an employee’s illness becomes so severe that they need a leave of absence, and you have a consistent policy of requiring a doctor’s note for absences of more than three consecutive work days, the illness will become known to you. You have to draw the line between workplace conduct and what goes on in someone’s personal life. But if someone shows up to work every day, and is a productive and decent employee, then whether they are seeing a psychiatrist or is taking medication shouldn’t factor into the employer-employee relationship. If an employee becomes disruptive, it almost doesn’t matter whether they are in treatment or not. If they are engaging in behavior that is unacceptable, you don’t have to tolerate it. There will be some signs that an employee is having problems, and that’s where good management comes in. You should speak privately with the employee. If you have an employee assistance plan, offer the employee its services. Above all, clearly explain to the employee that you need good, non-disruptive job performance regardless of whether they have a psychiatric disability. Find a mental health professional to explain the various diagnoses. Example: an employee may bring you a note saying that he’s only fit for non-stress, light duty because of a diagnosis of "X," using psychiatric terms. Ask a psychiatrist to explain what the diagnosis means in plain language and be sure to ask whether you should have any safety concerns. It’s important to know what to expect from a person with a particular mental disability and also which fears are reasonable and which are not. Paying a mental health professional for an hour’s consultation can be a cost-effective way to buy yourself some peace of mind. Make sure you can back up any employment actions with objective facts. If you get to the point where you’re absolutely terrified, get the person out of the workplace first and worry about the lawsuit later. Your first priority has to be a safe workplace for all employees. Murder is one of the leading causes of on-the-job death among women. Too often, women who are killed on the job are slain by a current or past male partner. Abusive husbands and lovers harass women at work either by phone or in person, causing them to show up late, leave early, miss work or lose their jobs. |