Joshua Stein Quoted in "Preventing Workplace Violence: Think Twice About Claiming 'Direct Threat'"

Heightened awareness about gun violence and its perceived connection to mental health issues has prompted employers to consider taking proactive measures to prevent incidents involving their own employees. In seeking to mitigate risk, however, employers need to proceed cautiously so they don’t run afoul of disability discrimination laws.

The Americans with Disabilities Act and many state law equivalents prohibit discrimination against employees with disabilities, but also provide certain affirmative defenses to employers. Generally, an employer may exclude an individual from employment if he or she poses a direct threat to either himself or herself or to other employees. Under the ADA, a direct threat is a significant risk of substantial harm to an individual’s or others’ health or safety that can’t be eliminated or reduced by reasonable accommodation.

At the National Employment Law Institute’s 28th Annual ADA & FMLA Compliance Update last week, both David Fram, NELI’s Director of ADA & EEO Services, and Joshua Stein, a member of Epstein Becker Green’s Employment, Labor & Workforce Management practice, said employers have asked them whether to use the direct threat defense as a means of excluding or removing individuals from employment when they are suspected of having mental disabilities that could lead to workplace violence. ...

Stein said that employers want to argue direct threat because it seems “clean and easy” — as simple as saying, “Direct threat, they’re out.” But this can be a “huge risk” for employers.

Employers should avoid making assumptions about an employee’s mental health, Stein said. If an employee comes to work irritable or “acting strange,” that doesn’t necessarily mean that he or she has a mental disability, as any number of personal factors could be at play. …

According to Stein, instead of making assumptions, the employer should say to the employee, “We notice you really haven’t been yourself recently ... is everything okay?” Asking this question at the outset may provide information that the employer wouldn’t have otherwise had, which may eliminate the concern altogether. If the employee responds that he or she is “fine,” then the employer may monitor the employee’s conduct and performance, but should otherwise refrain from taking further action.