According to preliminary data from the Bureau of Labor Statistics, 375 workers were killed in shootings while on the job in 2012.
The construction industry is not immune from workplace violence. Although all employers strive to keep their employees healthy and happy, it is becoming increasingly important for employers to be prepared to handle situations when employees threaten to hurt themselves or others.
These situations often involve individuals who suffer from serious mental or psychological disorders. The Americans with Disabilities Act (ADA) protects employees with such disorders. This article will try to address the delicate balancing act employers must perform when addressing these issues while ensuring compliance with the ADA.
One of the first things employers usually want to do when dealing with these situations is to send the employee for a medical examination. The ADA, however, does prohibit such examinations unless they are job-related and consistent with business necessity. Thus, an employer first must determine whether they can meet that standard.
The medical exam is job-related and consistent with business necessity when the employer has the reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition or (2) an employee will pose a direct threat due to a medical condition.
It is important that the employer’s belief is based on objective evidence. Particularly in the context of workplace violence, employers should be careful when relying on information from other employees. There is a distinction between employees being afraid due to an actual threat and employees being afraid due to a stigma association with mental health disorders.
If an employer meets the “job-related and consistent with business necessity” standard and does sends an employee for a medical examination, it may require that an employee provide credible documentation from a healthcare professional ensuring that they can return to work safely.
It is important to note that employers are only entitled to the information necessary to determine whether the employee can work without posing a direct threat. Employers are not entitled to an employee’s entire medical record.
Further, although an employer may require an employee to go to a healthcare professional of its choice to determine whether the employee can perform his/her job without posing a direct threat, an employer should be cautious about relying on the opinion of its own health care professional where that opinion is contradicted by documentation from the employee’s own treating physician, who is knowledgeable about the employee’s medical condition and job functions, and/or other objective evidence.
Notwithstanding the protections for employees with mental illness under the ADA as outlined above, the ADA does not prohibit an employer from terminating an employee who commits misconduct at work regardless of whether that misconduct was connected to their mental illness. See Palmer v. Circuit Court of Cook County, Ill., 117 F.3d 351 (7th Cir. 1997) finding that if an employer terminates an employee because of the employee’s unacceptable behavior the fact that the behavior was brought on by mental illness presents no issue under the ADA.
Accordingly, although employers should take care to comply with the ADA, they should not be afraid to address issues of misconduct in these situations the same as any other incident of misconduct.