Nathaniel M. Glasser, Member of the Firm in the Employment, Labor & Workforce Management practice, in the firm’s Washington, DC, office, was quoted in SHRM, in “Investigations, Safety Risks Result in Involuntary Leave,” by Allen Smith.
Following is an excerpt:
Placing an employee on administrative leave should be done sparingly but may be appropriate during an investigation or if an employee poses a direct threat to health or safety. …
Safety Risks …
Moreover, employers should approach involuntary leave cautiously even when an employee behaves erratically, said Nathaniel Glasser, an attorney with Epstein Becker Green in Washington, D.C.
"In the case of an employee who may exhibit psychological problems, employers cannot take adverse action, such as placing an employee on leave, for that reason alone," he cautioned.
The Americans with Disabilities Act prohibits employers from placing an employee with a disability on involuntary leave unless that worker poses a "direct threat"—that is, a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.
Glasser said that before deciding to place an employee on an involuntary leave due to erratic behavior, the employer first must determine whether the worker poses a direct threat by considering:
- The duration of the risk.
- The nature and severity of the potential harm.
- The likelihood and imminence of potential harm.
"If the employer makes a determination—based on objective, factual information rather than subjective perceptions or irrational fears—that the employee poses a direct threat, the employer may place the individual on an involuntary leave," he said.
An employer has options in the case of psychological conditions that pose a direct threat, Glasser noted, such as offering voluntary leave or referring the worker to the company's employee assistance program. Other alternatives in such cases include reductions in or changes to schedules and temporary removal of or changes to duties.
Glasser added, "In the case of misconduct, alternatives to involuntary leave may be written warnings; transfers or changes in duties, position or reporting relationships; last-chance agreements; or even termination."