Dealing With the Potentially Dangerous Disabled Employee Dealing With the Potentially Dangerous Disabled Employee

Dealing With the Potentially Dangerous Disabled Employee

Many employers have been faced with a dilemma where something happens that raises concerns about whether an employee with a known or claimed disability may hurt someone.  The employer must balance competing obligations (and potential liabilities) – maintaining a safe workplace for all employees and dealing with the employee with the disability.
Such a dilemma was addressed last month in a case decided in the U.S. Court of Appeals for the Ninth Circuit, Mayo v. PCC Structurals, Inc.  In that case, an employee (Mayo) who had been diagnosed with a major depressive disorder made comments to coworkers that he was going to "blow off" the heads of a supervisor and a manager, "take out management," bring a gun to work and "start shooting people."  Upon learning of the threats, the employer immediately suspended Mayo and barred him from the workplace, and reported his threats to the police.  The police placed Mayo into custody for a few days because of the danger he posed to himself and others, after which he took a two-month leave of absence under the applicable disability law and the Family and Medical Leave Act.  At the end of the leave, a treating psychologist concluded that Mayo was not a "violent person" and cleared him to return to work with a recommendation that he be assigned to a new supervisor.  Instead, the employer terminated him.
The Americans with Disabilities Act, and most corresponding state disability laws, prohibit discrimination against a "qualified individual with a disability" and, if necessary, require employers to provide such an individual with a reasonable accommodation that would enable the qualified individual with the disability to perform the essential functions of his/her job.  Mayo sued his employer claiming that his threats were caused by his disability and, therefore, his termination because of them was unlawful discrimination because of his disability.  He further argued that his employer unlawfully failed to provide him with a reasonable accommodation, that being, a different supervisor.
The Court disagreed with Mayo and ruled in favor of the employer.  The Court assumed that Mayo had a "disability," but held that he was not protected by the disability laws because he was not a "qualified individual" since an essential function of almost every job is the ability to appropriately handle stress and interact with others.  Therefore, the employer had no obligation to provide the accommodation requested by Mayo and his psychologist.  The Court went on to note that, even if Mayo was qualified, the accommodation requested by Mayo would not have been reasonable because it would not have changed his inappropriate response to stress but, rather, according to the Court, would only have "possibly added another name to his hit list."
Mayo was an extreme case because the threats were serious and very credible.  When initially questioned by his employer, Mayo not only admitted making the threats, but also told his employer that he could not guarantee that he would not actually do it.  And when the police asked him if he planned to go to his workplace and start shooting people as they took him into custody, he replied, “Not tonight.”  Thus, his threats were quite serious and very believable, which made the Court’s decision an easy one.  The Court made it clear, however, that offhand expressions of frustration, inappropriate jokes or rude or gruff behavior would not render a disabled employee "not qualified" and beyond the protection of the disability laws.
The Mayo case demonstrates that when assessing a situation of this nature, a thorough and thoughtful analysis of the facts and circumstances of the specific situation is required to properly balance the competing interests involved and determine the appropriate course of action.  The more serious and credible the specific threat(s), the more likely the employer will be able to justify and defend the termination of the potentially dangerous disabled employee.
For more information, contact Byron Myers or any member of Ice Miller’s Labor, Employment and Immigration Group.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances. 
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