Managing Potentially Unstable Employees

Workplace stress and violence are increasing. However, at the same time, you are being forced to assume more and more legal responsibilities for employees with mental and/or emotional disabilities. Unfortunately, the laws and regulations provide little or no guidance for employers struggling to deal with stressed or mentally impaired employees.

The following summary provides some tips for handling problem situations. However, because of the complexity and the high risks involved in many of these cases, you should seek advice from mental health professionals and legal counsel in working through a particular problem.

Your legal obligations

The following summary lists the legal issues you should be aware of when dealing with a potentially unstable employee.

EEOC guidance on psychiatric disabilities under the ADA. The Equal Employment Opportunity Commission (EEOC) has issued guidelines to facilitate the enforcement of the Americans with Disabilities Act (ADA) for individuals alleging discrimination on the basis of psychiatric disability. The guidelines specify that:

1.           you may not disclose any medical information to employees about a co-worker''s disability;

2.           employees need not submit formal written requests for reasonable accommodation -- the request is sufficient if you know that the individual needs an adjustment or change at work for a reason related to a medical condition and a family member, friend, health professional, or other representative can make the request;

3.           reasonable accommodation of mental impairments may include physical changes to the workplace, modifications of company policies and procedures, and more detailed guidance or structure to assist the individual in performing his or her job;

4.           you may discipline individuals with mental disabilities for violating workplace conduct standards even if the misconduct resulted from the disability;

5.           you may not use safety concerns or the "direct threat" standard to justify the exclusion of mentally impaired individuals if persons without disabilities would not be excluded under similar circumstances;

6.           employees with a history of violence or threats of violence can be refused employment if you can show, through medical evidence, that the individual poses a direct threat.

Interplay between workers'' compensation and ADA. Claims for workers'' compensation benefits for work-related stress may be the first sign that something is wrong. However, EEOC guidelines also specify that: (1) you may not refuse to hire employees with a history of workers'' compensation injuries out of a concern, correct or incorrect, that the individuals post some increased risk of work injury; (2) you may not require that an employee on workers'' compensation be released to full duty before returning to work as long as the employee can perform the essential functions of the job with reasonable accommodation; and (3) employees with disability-related workers'' compensation injuries are entitled to reinstatement to their original position unless you can prove the employee poses a "direct threat."

OSHA guidance on workplace violence. You are required to provide your employees with work environments that are safe and free from recognized hazards. Repeated incidents of workplace violence could spur workers to file safety complaints. OSHA has issued guidelines for establishing programs to minimize workplace violence.

Negligent hiring, retention, and supervision claims. Negligent hiring, negligent retention, and negligent supervision claims are "common law" theories used by third parties in civil claims for personal injuries caused by an employee. In situations involving unstable employees, the critical issue is whether you knew or should have known that the employee would commit the act that injured the third party.

Defamation and invasion of privacy claims. Clearly, situations in which you must deal with unstable employees are extremely sensitive. Unsupported allegations, gratuitous remarks, and careless gossip about an employee''s mental health and/or violent propensities can lead to defamation and invasion of privacy claims.

Tips for working through the mess

Following is a general strategy for dealing with unstable employees:

·               Define the essential mental functions of each job. Clear identification of the essential mental functions required for the job will help you identify reasonable accommodations for mentally impaired persons and distinguish disabled persons from those who claim they are disabled. Furthermore, if a job description does not contain information on the essential mental functions of the job, the psychiatrist or psychologist examining the employee will not provide a helpful opinion.

·               Develop clear work rules and distribute them. Work rules establish a code of behavior for all employees, regardless of any disabilities or impairments. Adherence to the work rules becomes another essential job function employees must be able to perform. This requirement is important in situations involving individuals with violent propensities.

·               Develop a workplace violence program. A workplace violence program should include: (1) a written workplace violence program that communicates a clear policy of zero tolerance for workplace violence, assigns responsibility and authority for the program to individuals with appropriate training and skills, encourages employees to promptly report incidents and suggest ways to reduce or eliminate risks, protects against retaliation for reporting incidents, and provides for detailed recordkeeping; (2) a review of medical, safety, workers'' compensation, and insurance records to pinpoint instances of workplace violence; (3) surveys of employees to get their ideas on the potential for violent incidents and to identify or confirm the need for improved security measures; (4) periodic inspection of the workplace and evaluation of employee tasks to identify hazards, conditions, operations, and situations that could lead to violence; (5) after hazards of violence are identified, designing engineering measures or administrative and work practices to help prevent violent incidents; (6) procedures for post incident response, including comprehensive treatment for victimized employees and employees who may be traumatized by witnessing a workplace violence incident; (7) training and education for employees; and (8) maintenance of records and regular evaluation of your program.

·               If appropriate, use post offer mental examinations. In general, this technique should be limited to situations when the essential functions of the job require the employee to be free of certain psychiatric impairments because of safety and health concerns involved in the job. If you wish to use mental examinations to screen individuals with particular psychiatric impairments, you should consult with legal counsel and a mental health professional to develop appropriate procedures.

·               Deal with objective facts, not subjective fears. The ADA prohibits discrimination against individuals who are currently impaired, have a record of impairment, or are erroneously regarded as being impaired. So if you assume someone is mentally disabled, you may inadvertently obligate your company to go through reasonable accommodation of an individual who may not qualify for protection under the ADA. Your first response should be to deal with the behavior -- the failure to follow work rules or perform work as required.

·               Don''t ignore an employee''s efforts to communicate a problem or a need for assistance. The EEOC guidelines specify that an employee does not have to use the words "I want reasonable accommodation" to trigger your obligation to accommodate. Similarly, if management comes across information which indicates that an employee may have a mental problem, your company cannot pretend that it has no knowledge simply because the employee has not expressly disclosed his or her disability. Courts will hold you responsible if your management knew or should have known that an employee had a problem.

·               Monitor the progress of the workers'' compensation case closely. There is a close interrelationship between the ADA, leaves of absence, and workers'' compensation claims. Very often, work-related stress claims can lead to concerns over the length of a leave and eventually to potential disability discrimination claims. Monitor the workers'' compensation case closely and seek legal advice if a disability discrimination or workplace violence issue arises.

·               Seek professional advice to determine whether the employee is a disabled individual. EEOC guidelines and court cases all stress the importance of getting advice from health care professionals when dealing with disabled individuals. Expert testimony is necessary if you are trying to: (1) confirm the existence of a mental disability; (2) determine the extent of the disability and its effect on the individual''s ability to perform essential functions; (3) identify reasonable accommodations, if any; and (4) determine if the individual poses a direct threat to himself or herself or others. However, when working with these professionals, remember that they do not know your business. You need to educate them about your company, the essential functions of the employee''s job, and any applicable work rules.

·               Carefully identify reasonable accommodations. Doctors can assist you in identifying possible reasonable accommodations that may assist a mentally disabled individual in performing the essential mental functions of his or her job. Again, educating your expert on the mental requirements of the job is the key.

·               Work with experts to determine if there is a direct threat. "Direct threat" means that the individual poses a significant risk of serious harm to himself or others that cannot be reduced through reasonable accommodation. Determination of whether an individual poses a "direct threat" requires expert testimony. If you are faced with a situation in which you are concerned about whether an individual poses a threat of workplace violence, you will need expert testimony to validate your concerns. Your subjective fear that an employee may do harm is not sufficient to terminate an individual for fear of workplace violence. You need expert testimony that the individual has a propensity to commit violent acts, so there is a probability of harm in the future.

·               If there is a threat or propensity for violence, take action. You may be held liable for injuries to third parties caused by employees under the theories of negligent hiring, negligent retention, and/or negligent supervision. Accordingly, if you know or have reason to know that an employee or applicant has a propensity for violence, that individual should not be retained or hired. Failure to act can result in heavy liability for your company.

·               Document your efforts. If you have a duty to reasonably accommodate a disabled individual, you should keep track of each instance of accommodation you provide. This record may help you defend against a claim that the company has failed to reasonably accommodate an employee. It may also help to develop an argument that reasonable accommodation is not possible.

Remember, the ADA requires you to keep medical records confidential. Accordingly, the following documents should be kept in confidential files that are segregated from your personnel files: workers'' compensation files, temporary disability insurance claims, long-term disability insurance claims, doctor''s certificates and correspondence, logs of accommodation and requests for accommodation, expert reports, physical and mental examinations, health questionnaires, and any other information regarding an individual''s physical and/or mental status and treatment by health care professionals.

Copyright 2000 M. Lee Smith Publishers LLC.

This article is an excerpt from Pacific   Employment Law Letter, written by the law firm of Carlsmith Ball. The contents of Pacific Employment Law Letter are intended for general information and should not be construed as legal advice or opinion. Readers in need of legal advice should retain the services of competent counsel.

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