Testing After Treatment
If an employee takes time off to receive mental-health treatment, a company can require the employee to take a psychological exam before returning to work, only if the employer needs the information to legitimately assess whether the employee may safely return to work.
That was the case at CIGNA Healthcare (Cody v. CIGNA Healthcare of St. Louis, Inc., U.S. Court of Appeals for the Eighth Circuit, 1998). The company was concerned that Carol Cody, one of its nurses, could become violent because she had begun acting strangely and talked about carrying a gun. The company placed Cody on medical leave and required her to submit to a psychological examination before returning to work.
Cody filed a lawsuit. The Eighth Circuit Court dismissed her claim that Cigna improperly perceived her as disabled, finding that, “A request for an evaluation is not equivalent to treatment of the employee as though she were substantially impaired.” The court went on to state that “Employers need to be able to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims.”
One of the major goals of the ADA is to prevent employers from acting on the basis of unfounded fears or suspicions about harmless but abnormal behaviors that might accompany a mental condition, such as Tourette’s syndrome. Employers faced with nonviolent behavior should not assume that the employee may be dangerous.
Unless a mental health professional looking at all the facts can reasonably predict that violence may result, management should treat employees as though they are otherwise qualified and attempt to accommodate the mental impairment, if any.
Robert Stradley faced a similar situation (Stradley v. LaFourche Comm., Inc., U.S. District Court for the Eastern District of Louisiana, 1994). Stradley, who suffered from acute anxiety and depression, was terminated because his supervisor assumed that the condition made Stradley potentially violent.
Stradley filed a lawsuit. The court denied the employer’s motion to dismiss Stradley’s case, finding that a reasonable juror could conclude that the supervisor unlawfully regarded Stradley as disabled. The supervisor’s mere “belief” was insufficient evidence that Stradley could not safely perform the essential functions of his job.
In this case, the court warned, “To permit employers carte blanche to terminate employees with mental disabilities on the basis of any abnormal behavior would largely nullify the ADA’s protection of the mentally disabled.”
The ADA not only protects employees from discrimination based on their own disabilities; it also protects employees from discrimination in the workplace based on the disability of a family member or associate. As with employees themselves, however, if the family member or associate presents a danger to the work force, the employer may take appropriate action to reduce or eliminate the threat of violence from that person.
Consider the case of Howard Den Hartog (Den Hartog v. Wasatch Academy, U.S. Court of Appeals for the Tenth Circuit, 1997). Wasatch Academy required its teachers, including Den Hartog, to reside on campus. After several uneventful years, Den Hartog’s son was diagnosed with bipolar affective disorder. Over time, the son made various threats, including threats to slit his wrists and harm the headmaster’s family.
Despite the school’s request that Den Hartog keep his son away from the campus, the visits continued. After a particular incident during which the son broke a former schoolmate’s ribs and threatened to “get” the headmaster, the school fired the father. Hartog filed a lawsuit against the school, claiming that his ADA rights had been violated.
The court found that the school was justified in terminating Den Hartog because it believed the threat of violence from his son to be grave, severe, imminent, and ongoing. In its decision, the court stressed that the school’s conclusion was based on an “individualized assessment” of the son, rather than on any predetermined or unfounded general stereotypes about people with bipolar affective disorder.
Congress passed the ADA to protect employees from discrimination because of a physical or mental impairment. Employers must balance those protections with their responsibility to protect other workers against potential harm on the job. Knowing how the law applies to workers who exhibit or threaten violent or potentially violent behavior is important if companies are to have effective and legally enforceable workplace violence prevention programs.
To facilitate quick, decisive action in response to a threat of harm, employers should enact a general policy prohibiting violence, threats of violence, and possession of weapons on company property. Employers should then assess their work force and devise a plan for responding to danger. As with all general workplace policies, a ban on violence, threats, and weapons must be consistently enforced in a nondiscriminatory manner. The plan, to which proper resources must be allocated, might include:
The Americans with Disabilities Act (ADA) prohibits employers from discriminating against qualified individuals with a disability, including those with mental impairments. However, if employees pose a “direct threat” to safety in the workplace, employers may test, discipline, or dismiss them without violating the law.
Generally, it does not violate the ADA to terminate an employee who has assaulted a coworker or poses a specific, significant threat of substantial harm, even if that employee suffers from a mental impairment. For example, one court has held that the ADA did not protect a worker suffering from a personality disorder who assaulted his supervisor, damaged equipment, and destroyed an office.
On the other hand, if an employee has merely threatened violent behavior, the employer must proceed carefully—assessing the significance and severity of the threat.
An employer may want an employee to be examined by a psychologist. This type of a medical examination potentially implicates two portions of the ADA: Employers cannot act on the basis of “perceived” disabilities, and employers are very limited in their right to require medical examinations. Employers asking an employee to submit to a psychological examination should document what led the company to inquire about the employee’s ability to safely perform his or her job.
One goal of the ADA is to prevent employers from acting on the basis of unfounded fears or suspicions. The ADA also protects employees from discrimination based on the real or perceived disability of a family member. However, if the family member presents a danger to the work force, the employer may take appropriate action to reduce or eliminate the threat of violence.
Karen Karr is special counsel in the Phoenix office of Steptoe & Johnson LLP, where she represents employers in labor relations and employment matters.