Threat of Harm to Others — What’s an Employer to Do?

An employee who operates a forklift begins to act erratically. While he had always been a solid performer, his judgment is off, and he is quick to become angry. The supervisor fears he might injure someone. What should the employer do?

One step the employer must take is to determine whether the errant behavior is due to a mental or physical condition that rises to the level of a disability and, if so, might the condition cause harm to others. 

Of course, if there is a concern or threat of imminent violence or danger, employers should always take immediate and appropriate safety measures, including calling the authorities as warranted.

Assuming that there is no such circumstance and there is no physical cause for the employee’s behavior, the employer must determine whether the change in behavior is due to a mental condition covered by the Americans with Disabilities Act. In 1997, the EEOC issued guidelines titled “Enforcement Guidance on the ADA and Psychiatric Disabilities.” Then, in 2000, the EEOC issued further guidelines addressing danger to others: “Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA.” 

These guidelines analyzed whether a condition rises to the level of a disability under the law as it existed before the Americans with Disabilities Act Amendments Act of 2008 (ADAAA), which significantly broadened the scope of protected conditions. 

In 2016, eight years after passage of the ADAAA, the EEOC issued a release called “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.”

Read as a whole, the EEOC instructs employers, when faced with information raising a concern about a danger to others due to a mental disability, to take the following steps:

  • An employer may require an employee to provide documentation that is sufficient to substantiate that the employee has an ADA disability and needs a reasonable accommodation.
  • The employer may require the employee to be examined by an appropriate health care professional of the employer’s choice if the employee provides insufficient documentation from their treating health care professional to substantiate that they have an ADA disability and need a reasonable accommodation. However, if an employee provides insufficient documentation in response to the employer’s initial request, the employer should explain why the documentation is insufficient and allow the employee an opportunity to provide the missing information in a timely manner.
  • The determination that an employee poses a direct threat must be based on an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. This assessment must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best objective evidence.

Once the employer is satisfied that the employee poses a direct threat to others, the employer must consider whether there is a reasonable accommodation which will permit the employee to perform the essential duties of the job. Of course, when an employee suffers from a mental health condition which will cause harm to others, this might not be feasible. One potential accommodation is a leave of absence. If no reasonable accommodation exists that will not impose an undue burden on the employer, the employee will be deemed not qualified for the job and lose protection under the ADA. As with other medical documents, records relating to the employee’s psychological condition must be retained in a separate and secure file.

Bennett L. Epstein

Bennett L. Epstein is Partner at Foley Lardner. Since 1978, he has practiced exclusively in the area of labor and employment law. He has a practical approach to solving workplace issues. However, when a dispute cannot be resolved through dialogue, he aggressively litigates on behalf of clients. Bennett is a partner in the firm’s Labor and Employment Practice. Bennett’s practice is national in scope. He has litigated jury trials across the country and has extensive agency and arbitration experience, with particular experience in resolving disputes between executives and their employer. Bennett began his legal career as a trial attorney with the National Labor Relations Board (NLRB). He continues to represent management in union negotiations, labor relations, arbitrations, and matters before the NLRB. His experience includes representation of both public and private employers, with clients including advertising agencies, media, entertainment, distribution, financial services, park districts, engineering, and manufacturing companies.

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