When incidents of workplace violence are committed by workers who may be mentally impaired, employers need to be sure that their response does not violate the Americans wiith Disabilities Act.
A good worker for 10 years, mail carrier Thomas Lussier began having panic attacks in 1991. After “going out of control” in the workplace, acting erratically, and engaging in verbal outbursts, he was placed on leave. A few days later, two events occurred that caused the post office to change its treatment of Lussier. First, a postal worker in another state killed his supervisor and several coworkers with a gun. Second, one of Lussier’s coworkers submitted a note anonymously, stating that Lussier was at risk for committing violence.
Afraid of another shooting incident, the post office terminated Lussier before he returned to work. Lussier filed a lawsuit, charging that his rights under the Americans with Disabilities Act (ADA) had been violated. The court agreed.
In the case (Lussier v. Runyon, U.S. District Court for the District of Maine, 1994), the court found that the employer’s fear of violence was not legitimate and that it had, therefore, improperly terminated Lussier. The court explained that the post office erred when, rather than relying on specific information about Lussier, it relied on an anonymous note and its own unsupported fear of what Lussier might be capable of doing.
It should be a straightforward matter for management to establish and enforce a workplace violence prevention program. It would seem clear, for example, that an employee who kicks a door, screams profanities, and threatens coworkers and customers with physical harm can and should be fired for violating workplace violence policies.
Unfortunately, it’s not always so simple, as the above case illustrates. Many individuals committing violent incidents in the workplace may suffer or at least claim to suffer from a mental impairment to seek protection under the ADA. In other cases, employees may complain that their employer “perceives” them as disabled because of their mental condition. A company’s response to any threat of workplace violence must, therefore, consider the ADA and its protections.
Generally, the ADA prohibits employers from discriminating against—and requires them to make reasonable accommodations to—qualified individuals with a disability, including those with mental impairments. The ADA specifies, however, that employers are excused from these obligations if the employee poses a “direct threat” to safety in the workplace.
To qualify as a “direct threat,” the employee must pose a “high probability” of “substantial harm.” A speculative or remote risk is insufficient. An employer making this assessment should consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.