Violence in the Workplace: OSHA, Common Law, the Americans with Disabilities Act and Common Sense Battle it Out
by Erin Ebeler, Woods & Aitken LLP
Stories of violence in public locations, schools and elsewhere have become nearly common place. Even before such stories became nightly news, employees were known to get in fist fights or loud arguments with co-workers. While there is no shortage of opinions about the best method to address these issues, employers face a number of difficult legal challenges when presented with issues of workplace violence.
For example, assume that an employee physically threatens a customer or co-worker. In many situations, the employer is going to be justified in simply firing the employee following an investigation. The employer will hopefully have an employee handbook that directly addresses workplace violence and absolutely prohibits such threats from being made.
Change the facts slightly, however, and assume that the employee alleges during the investigation that the threat was a result of a previously undiagnosed mental illness—a disability under the Americans with Disabilities Act (“ADA”). The ADA permits employers to require that an employee not pose a “direct threat to the health and safety of the individual or others in the work-place.” However, the determination that a direct threat exists cannot be made based on fear or speculation. Rather, the determination must be made based upon “objective, medically supportable methods.” In other words, the employer will likely be required to send the employee for a fitness for duty examination that includes a mental health evaluation prior to taking any action against the employee’s job.
If the employee is deemed to be safe to return to work by the medical professional, such a result will likely dictate that the employee be allowed to return to work under the ADA (in limited circumstances, a second opinion may be sought prior to this happening). Such a requirement may be very difficult for an employer—as well as the threatened customer or co-worker—to swallow. Among other things, the employer must take steps to ensure that the employee who made the threat is not harassed, discriminated, or retaliated against in anyway under the ADA. Such efforts are going to be complicated by ADA prohibitions that will likely prevent the employer from discussing the employee’s medical issues with the employee’s co-workers to explain what happened. Likewise, an employee/public relations question is presented because the employee or customer who had been threatened may refuse to work with the employee who made the threat. At that point, questions will likely arise as to whether the ADA would allow the employee who made the threat to be transferred to another location.
Further legal complications will arise if the employee actually causes harm to a co-worker or customer after returning to work. In that situation, the employer may very well face a lawsuit for failing to provide a safe workplace and/or for negligent retention of an unsafe employee. The ADA does not provide a “safe harbor” in such situations, and the employer will be forced to defend its reliance on the medical examination(s) performed that concluded the employee was safe to return to work. Further, the Occupational Safety and Health Administration (OSHA) may take the position that the employer failed to provide a safe working environment in light of a “known” issue.
In short, employers are often in an untenable situation when these issues present themselves. However, there are certain steps that employers should consider taking to address these issues proactively as opposed to reacting to a bad situation.
1. Do You have a Policy Regarding Workplace Violence? OSHA has not specifically required the adoption of a policy regarding workplace violence; however, OSHA guidelines and recommendations make clear that such a policy is key to preventing workplace violence and providing a safe workplace. Further, in 2011, OSHA adopted specific guidelines for its field offices that detail how allegations of workplace violence will be reviewed and how employers will be inspected with regard to workplace violence. Generally speaking, most policies regarding workplace violence adopt a “zero-tolerance” approach, and this is the approach recommended by OSHA.
2. Have You Reviewed Your Company’s Security Procedures? The risk of workplace violence increases in certain situations: recently terminated or disciplined workers, layoffs, employees who are under the influence of drugs or alcohol, etc. How does your company control access to its property? Are entry codes changed on a regular basis and following termination of an employee? Are dark areas appropriately lit? Are employees trained to recognize signs of troubled co-workers or customers? Do those employees know who to report suspected problems to?
3. Have You Considered Implementing an Employee Assistance Program (“EAP”)? Broadly speaking, an EAP provides employees a way to confidentially access help on a wide range of issues including mental health, illness, financial, drug/alcohol abuse or legal problems. Providing access to such services may help prevent problems from spiraling downhill and provide a resource for employees in trouble.