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Workplace Violence and the Americans with Disabilities ACT

Workers who commit violent acts in the workplace may suffer, or claim to suffer from a mental impairment and seek protection from termination under the ADA (Americans with Disabilities Act). Employers, who have a duty to limit workplace violence, must also take appropriate steps to avoid liability under the ADA.

The ADA prohibits discrimination against employees who have an actual or perceived physical or mental disability. Employers who are found to be discriminatory face compensatory and punitive damages. To avoid liability for discrimination, employers must seek reasonable accommodations such that an otherwise qualified employee is able to complete the essential tasks of the job. An accommodation is a change or adjustment that allows the employee with the disability to continue working.

Accommodation is not required under some circumstances. If the accommodation would cause the employer undue hardship, it is not required. Undue hardship is determined on a case by case basis, and is not always based solely on cost. If, for example, the only feasible accommodation requires substantial modification to business processes or other worker’s schedules or duties, that may constitute an undue hardship. A negative impact on worker morale is not generally considered an undue hardship, however.

In addition, employers are not obligated to offer an accommodation if the employee poses a direct threat to themselves or other workers. The threat must have a high probability of occurrence with a possibility for imminent and substantial harm of the disabled employee or other workers. The threat potential must be assessed on a case by case basis, rather than generalized information. For example, an employee who was diagnosed with a bipolar disorder cannot automatically be terminated based on the assumption that individuals with bipolar disorders can demonstrate violent tendencies in the workplace. The individual worker would need to demonstrate specific behaviors that indicate a high likelihood of imminent and substantial harm to themselves or others.

If an employee requests an accommodation based on a disability, the employer must make reasonable efforts to find a suitable accommodation. The employer should initiate an informal communication process with the employee to mutually determine an appropriate accommodation. While not required, the employer may have difficulty defending their termination decision if such a process was not attempted.

When conducting the communication process, the employer should follow four steps. First, conduct an analysis of the specific job functions. Next determine the precise limitations of the employee with the disability. Third, jointly identify potential accommodations, and lastly, select an accommodation that is effective for both employer and employee. The solution should be both reasonable and effective, but it need not be the employee’s preferred choice.

Throughout the process, documentation is very important. The documentation can demonstrate the employer and employee’s involvement in the process, identify both agreements and disagreements, record all ideas and alternatives.

The employer should exhibit patience and flexibility in the process. The responsibility to seek a reasonable accommodation is a continuing duty. A single effort will not be considered appropriate due diligence. The U.S. Department of Labor offers a free service called the Job Accommodation Network. The network provides free consultative services and can help identify workplace accommodations. An employer’s defense against an ADA discrimination charge will be weakened if this service has not at least been contacted.

Employers can work within the guidelines of the ADA and prevent workplace violence. They must communicate effectively with the employee, document the process, and work towards a reasonable accommodation. A good solution can often be identified that retains gainful employment for the worker, while reducing the chance for workplace violence.