When Congress passed the Americans with Disabilities Act (ADA) in 1990, it was the first time in our nation’s history that the civil rights of people with disabilities had been comprehensively addressed in law. The ADA protects qualified employees and applicants from job discrimination based on disability. It also requires employers to engage in the interactive process with qualified individuals to identify reasonable accommodations that will help the person perform the essential functions of his or her job.
One complicated ADA issue that arises for employers, however, is when an employee has an impairment that appears to create a risk of harm to the employee or others in their work environment. Imagine, for instance, an employee who operates heavy machinery as an essential function of her job, but is diagnosed with a medical condition that causes her to fall asleep at any time without notice. Or, an employee who threatens violence against a co-worker and then attributes those comments to a mental illness. What can county officials do to reduce or eliminate that threat of harm while also complying with the ADA?
It’s All About Safety
Under the ADA, an employer may refuse to employ an individual who poses a direct threat to the health or safety of oneself or others. That means that once the employer has determined through an individualized evaluation based on objective evidence that an employee creates a direct threat that cannot be reduced or eliminated by reasonable accommodation, the employer can terminate the employment of the employee creating the direct threat. But the “direct threat defense,” as it is called, is not a silver bullet to resolve all complicated disability scenarios involving risk or hazards. There are many factors employers must consider before reaching, as a last resort, the decision to fire an employee because of a direct threat.
Does a Direct Threat Exist?
When an employer is determining whether or not a direct threat exists, they must engage in an assessment that is specific to the particular employee and evaluate the employee’s present ability to safely perform the essential functions of his or her job. The employer must base their determination on reasonable medical judgment that relies on objective evidence and must carefully consider the following:
- Is there a risk to self or others?
- Is the risk significant?
- Is the harm substantial?
- What is the timespan of the potential risk?
- What is the severity of the potential harm?
- Is it likely that the potential harm will actually occur?
- Is the potential harm imminent?
When determining whether or not an employee poses a direct threat, the employer must base this determination on facts, not on stereotypes, misunderstandings or fears about an employee’s disability. Nor may any employer consider what it believes is in the best interest of the employee. Employers must focus on what they know in the present moment, not what may happen in the future. And this assessment should only be as expansive as necessary to understand the nature of the risk — broad inquiries into an employee’s complete medical history are inappropriate and often illegal.
So when a county finds itself in a situation where an employee’s impairment may be causing a risk of harm, the appropriate county employee should:
- Identify and articulate the specific behavior that is posing a direct threat;
- Initiate the individualized, objective assessment described above; and
- Even if there is a direct threat, consider whether there are accommodations that can eliminate or reduce the risk of threat.
The threshold for what constitutes a direct threat is very high, and the burden is on the employer to show that the direct threat truly exists and that it cannot be reduced or eliminated by providing reasonable accommodations to the employee. Many employers have learned the hard way through lawsuits and trials that generalized concerns about an employee do not satisfy the law’s stringent standards. When a county is determining if an employee with a disability poses a direct threat, that county should be very conscientious in the approach taken in order to avoid potential litigation. And the county shouldn’t hesitate to review its conclusions with the CIS Pre-Loss team, and with its labor attorney, if the employee is represented by a union.
Mayo v. PCC Structurals (9th Cir 2015)
The plaintiff, a welder with the metal casting company who had a history of clinical depression, told co-workers that he “felt like coming down [to PCC Structurals] with a shotgun an[d] blowing off” the heads of the supervisor and another manager. He explained that all he would have to do to shoot the supervisor is show up at PCC Structurals at 1:30 in the afternoon, because that’s when all the supervisors would have their walk-through.
The co-workers reported these threats and the human resources manager questioned the plaintiff. When asked if he planned to carry out his threats, the plaintiff said he, “Couldn’t guarantee that he wouldn’t do that.”
PCC Structurals took immediate action. It suspended the plaintiff, barred him from the property, and called the police. The police questioned the plaintiff and ultimately he was admitted to the hospital for six days. The plaintiff took two months of OFLA/FMLA at the end of which, his treating psychologist cleared him to return to work, but recommended a new supervisor assignment. Despite this release, PCC Structurals fired the plaintiff and he sued.
So What Did the Court Determine?
Even if the plaintiff was disabled, he was not qualified at the time of discharge. An essential function of almost every job is the ability to appropriately handle stress and interact with others. An employee can be qualified despite adverse reactions to stress, but he is not qualified when that stress leads him to threaten to kill his co-workers in chilling detail and on multiple occasions. The ADA does not require that an employee whose unacceptable behavior threatens the safety of others be retained, even if the behavior stems from a mental disability. The opposite rule would place employers in an impossible position.
What About the Direct Threat Assessment?
The court responded that the employee was not fired because of risk of future violence; he was fired because he presently could not handle stress and interact with others. In other words, an individualized assessment was not needed.
But What About Accommodations?
The court ruled that the plaintiff couldn’t show what reasonable accommodation would reduce the threat. Giving the plaintiff a different supervisor, for instance, would not have changed his inappropriate response to stress — it would have just removed one potential stressor and possibly added another name to the hit list.
The court recognized that depression and mental illness are serious problems that affect millions of Americans and it did not intend to minimize the struggles of those who suffer from these ailments or suggest that all such individuals are incapable of working. But the court disagreed with the plaintiff that employers must simply cross their fingers and hope that violent threats ring hollow. Ultimately, the court found that while the ADA and Oregon disability law protect important individual rights, those laws do not require employers to play dice with the lives of their workforce.
By: Katie Kammer | Pre-Loss Attorney | CIS