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Workforce Management Community Center Forum Index � � Legal Forum � � Unstable EE: ADA vs. Organizational safety. ADA experts needed

Author	Unstable EE: ADA vs. Organizational safety. ADA experts needed
HRGenNM Joined: Sep 18, 2007 Posts: 2	Posted: 2007-09-18 17:17 I have an employee who is exhibiting severe paranoia. One more performance corrective action and EE will be termed. EE's manager is concerned about the safety of her other employees. EE states that EE can read minds, knows that others are "up to something" and that EE is being followed. I do not want to violate ADA but there are some serious concerns regarding EE's comments, and safety issues for other EEs. Has anyone been through a similar dilemma? How did you handle? Also, for the ADA experts out there, how do ADA and employee safety coexist? Concerned. Thanks.
Hrpro Joined: Mar 16, 2007 Posts: 809	Posted: 2007-09-18 17:56 I've dealth with similar situations although in a state two states west of you. In both of my cases it involved an armed employee (authorized by duties), a total workplace emotional collapse by the employee (both were bi-polar), suspension of the state firearm license and then a physician authorizing the employee to return to work armed "with no accomodation required." According to both internal and external counsel we must protect the rights of the employee and our fears regarding the safety of other employees in light of the medical releases were unfounded under their interpretation of the law. I would encourage you to work closely with competent legal counsel well versed in employment law as you navigate this situation. while all situations are inherently different those diferences could spell the different between success or failure. I wish you luck.
ltj Joined: Oct 12, 2004 Posts: 6	Posted: 2007-10-09 08:44 I have an EAP in place for referals for postive drug tests or violence in the workplace. I have referred 2 employees for violence. One of them made a threat and another threw an object. The referral was mandatory to ensure the safety of the workforce. I asked for a release before letting these employees return to work. I suggest monitoring for any sign of violence. If you have a zero percent, anti violence policy, either written or in practice, then act upon it. Treat all performance issues separately and remain objective. Hopefully, this employee's performance issues will result in an end to the problem for you.
pitselp Joined: Apr 26, 2005 Posts: 14	Posted: 2007-10-09 09:57 As a psychologist who does not practice in the US and is not faced with legislation protecting the rights of people with disabilities the way you experience it, I would like to encourage you to consult competent mental health people in your area. I doubt very much whether your legislation was intended to protect an individual at the expense of fellow workers, but the symptoms you describe are sufficiently worrisome to investigate placing the person on sick leave until a full mental health evaluation can be completed.
jmarGW Joined: Mar 06, 2007 Posts: 2	Posted: 2007-10-09 11:24 I would be very careful with this case for several reasons. I would avoid labeling the behavior as "paranoid" - unless in your official capacity you are a mental health professional. I would stick to describing the inappropriate behaviors and not attribute them to a specific diagnosis. Remember, ADA is meant to not only protect workers with disabilities, but also to protect employers. The ADA states "a person who is qualified to do the job with or without reasonable accommodation." Allowing inappropriate workplace behavior or violence is NOT a reasonable accommodation. However, if the person seeks time off to receive treatment, that may be considered a reasonable accommodation. See the Job Accommodation network website for examples of accommodations for various disabilities. The person must also request accommodation (the EEOC website has beautiful examples of what would be considered a request). If the person has not disclosed that they have a disability, you should not assume one. If they request accommodation, you have the right and obligation to verify the presence of that disability (particularly in cases where the disability is not obvious) by requesting documentation from the person's doctor. In short, if the disability is not diclosed and an accommodation is not requested, you are simply dealing with "bad behavior" (even if you suspect a mental health issue). However, following the advice of others who posted, my suggestion is to engage an EAP counselor to discuss the individual's behaviors and reinforce the consequence if the behaviors are not changed. Give the person a chance to correct the behavior. (Unless the behavior represents an immediate risk of danger to themselves or others.) I would also strongly encourage engaging the advice of an attorney to make sure you have exhausted all required options under the ADA and do not open yourself to risk. Good luck!
JMcQuaid Joined: Dec 07, 2004 Posts: 36	Posted: 2007-10-09 11:25 Your employee is ill. The simplistic answer is that he should be treated pretty much the same way any other ill employee would be treated when their illness starts to compromise performance and safety standards. But given that the symptoms of mental illness, although biologically based, affect behaviour and often impair the person's ability to recognize their own illness, personal ethics and human compassion trumps corporate policy and even well-meaning employment legislation. In this situation I would (and have) contact the person's next of kin and advise them of the observed behaviours and your concern for this employee. The family, may not be aware that their relative has become unstable. If possible, get the family's support in talking to the employee about their illness. If you have a company doctor/nurse, involve them in this process. Reassure both the employee and the family that your sick leave policies and return to work processes will be applied in the same manner as for any other illness but to do so will require doctor's note for any absence and clearance to return to work with or without restriction of duties.
howard7 Joined: Sep 13, 2001 Posts: 2615	Posted: 2007-10-09 12:52 Jeannie-I am a little concerned by your reply. Here's why 1. He is ill. Really? how can a non medical person make a medical determination. How about merely telling him he cannot return to work until he presents you with medical clearance based on your observations and leave it at that? 2. "personal ethics and human compassion trumps corporate policy and even well-meaning employment legislation" - Sorry but no. Personal ethics can NEVER trump corporate policy or the Laws of our country. Since everyones ethics can be different we would then have anarchy. 3. "I would contact the person's next of kin"- Really and say what? I, an untrained medical person, believe your relative is having a mental breakdown? This could be slander or libel with damages associated. I understand the familly may not be aware of the issue but since we represent the company in these matters we must be VERY careful what actions we take and what adjectives we use. I am not even sure we have the right to contact anybody except in an emergency. Is this an emergency? Maybe maybe not. So the best answer is seek immediate Employment Law attorney advice and only act after those discussions.
hrbth Joined: Oct 24, 2002 Posts: 1501	Posted: 2007-10-09 13:11 I have some serious problems with the original post and some of the responses as well. First of all, how do you know this employee is mentally disabled? Just because he's said to others that he can read their minds and that he thinks someone is following him? Have you considered that maybe he's joking? Or that he's just trying to wind up his coworkers? And how does this make him a danger to his coworkers? Even if he turns out to be completely insane, that isn't your diagnosis to make. Also, I wonder about your ADA concerns. Has he brought you medical certification of his mental disability? If he has, and you refused to attempt to accommodate his illness, THEN you'd have an ADA problem. If he hasn't brought you any kind of official notification that he's mentally unstable (keeping in mind that your own diagnosis is not in any way "official notification"), then as far as you're concerned, he's not disabled, and the ADA isn't an issue. I also have issues with the idea of calling his relatives about this. This is not only highly intrusive but could also give him cause to take legal action against you and/or your company. I recommend you sit him down and try to find out why he's been making these somewhat-but-not-extremely alarming statements to his coworkers. If his responses are incoherent or otherwise confirm your suspicions that he may have some kind of mental disability, then place him on administrative leave immediately and tell him you will discuss his return to work with him if/when he brings you some kind of note from his doctor which states he's medically capable of returning to work. Give him a deadline for this, say 30 days or something, and if you don't hear from him by the time the deadline's up, terminate his employment. Document everything that's said and that happens. And keep it all for a long long time.
fichisholm Joined: Sep 25, 2007 Posts: 2	Posted: 2007-10-09 18:09 At a personal level, I have a real problem with the assumption being made that a person with a suspected mental illness is a danger to their fellow employees. Has this individual ever exhibited violent behaviour, or made threats against coworkers? I would guess the answer to that is no, given that they are still employed. Putting that aside, you need to focus on the appropriateness of the behaviours in the work environment and address those. If their behaviour is demonstrably impacting their ability to deliver on their key accountabilities, or work in a team, then that is grounds for addressing the behaviour as a performance issue. Make sure that there is objective proof of this though, not just a feeling by their manager. In terms of actions, I think you would be within your rights to express to this individual that you have concerns over the health as it relates to their fitness to undertake their job, and request that they attend an independent medical with a company GP, or provide medical certification confirming fitness to work. Absolutely, you should also be conferring with your Employment Lawyers to get their guidance.
Hemipolice Joined: Jan 09, 2007 Posts: 5	Posted: 2007-10-09 18:39 jmarGW has your answer, and it looks like from your post that you are following the proper procedural steps. No person can make statements that cause others to fear for safety in the workplace, but you will need to document something more threatening than what you posted to justify termination. I had a similar situation to yours, and the comments on allowing the doctors to make the diagnosis are correct. Handle the situation according to your policy for dealing with behavioral problems with an eye towards offering the employee opportunities to seek professional help for any unwarranted perceptions regarding co-workers. Love your work!
kmcombine Joined: Oct 24, 2006 Posts: 3	Posted: 2007-10-09 20:13 I'm from Australia and so far as the current Common Law position in this country seems to be, an employer cannot reasonably foresee an employee's psychiatric disorder and therefore be liable for injury. If an employee with such a disorder discloses the fact to the employer, management of the employee (including safety of other employees) becomes the employer's responsibility. The key Australian legal case is "Koehler v Cerebos (Australia) Ltd [2005] HCA 15 (6 April 2005)" which is accessible on the Commonwealth High Court page of "www.austlii.edu.au". Hence, I would join in the cautious views expressed by others in this forum. The performance and behaviour of the employee concerned should be judged solely on his satisfying his assigned duties, together with his demonstration of reasonable and appropriate workplace conduct and normative attitude. In response to inappropriate or reckless behaviour, the employer could recommend that the employee consult a qualified counsellor as part of a disciplinary process in the expectation that medical or psychological referral might take place - if that employee chose to cooperate. I agree with others that branding the employee as "paranoid" or "bipolar" without medical or psychological evidence is inherently dangerous. In Australia, this would not necessarily breach antidiscrimination laws but it could provide ample grounds for a defamation action and, if termination were contemplated, it might well lead to the employee claiming constructive dismissal. As employees are entitled to a safe place of work, the employer's policies and procedures should emphasise this. In the Australian employment law context, keeping CONTEMPORARY records, and trail of these records, is essential if discipline against a hazardous employee is to succeed: rigorous civil and criminal standards of evidence apply to cases of this kind. As part of their workplace induction and in response to complaints of reckless or improper behaviour of a fellow employee, employees who have reason for believing that they are at risk should be encouraged to commence a private diary of relevant incidents: time, day, place, any witnesses, and any contextual factors such as dress, speech, demeanour, and any commonly recognized sign of substance abuse or dependence. As most informed Australian commentators claim that one in every 10 employees is likely to have symptoms of workplace psychopathy, especially bullying and harassment, it is essential to have adequate protection of potential victims implanted in policy and procedure, as well as in induction and workplace training updates. As the principle of mutual faith and confidence in the employment relationship is also undergoing resurgence in Australia, wise employers develop a policy on the management of an employee with genuine mental illness which reflects a compassionate and non-discriminatory approach, together with recognition of the service that that employee has provided.
BevVotta Joined: Apr 12, 2007 Posts: 13	Posted: 2007-10-10 15:13 OMG! I have been witness and victim of many behavioral situations with employees. You see, my occupation as a professional trainer with a major international organization, which teaches large groups of new hires on a rotating 6-8 week schedule and could write a novel, which is in the works, as to the lunacies of some individuals. I cannot figure out for the life of me how they make it through our intense hiring process, only to show their true colors in a classroom. Your question as to how I handled the situations...immediately brought them to our HR Dept. and immediate managers. In some situations termination occurs; however, in most cases they are treated with kit gloves and given leeway to run amuck over superiors. In one specific situation I had to deal with an outrageous lie that could have threatened my career, due to the paranoid and extremely over powering new hire that threatened to sue the company and use age discrimination because he could not do his job. He remained employed and continually caused havoc in his unit for almost a year. He should have been terminated as insubordinate way back when.
dcrisp Joined: Apr 13, 2004 Posts: 14	Posted: 2007-10-11 16:23 I'm happy to read all the good advice about legal responsibilities and the caution not to label the person without a medical opinion, but the fact remains that staff and managers are concerned with safety based on behavior they see and undoubtedly the press they've seen about fired (or soon to be fired) employees suddenly snapping and shooting people. I'm happy to take the post at face value. His poor performance will soon result in termination, let's assume appropriately. Violence happens and later everyone admits they were worried, but didn't do anything, so I'd say first there is a responsibility to do something and second there's a responsibility to the by-standers to not only ensure their safety, but reassure them that it is being ensured. This is a pretty tall order and a delicate one. You can't easily call a meeting and say "Joe here is scaring us all and we want you all to watch him like hawks and report any moves that might suggest he's bringing a gun to work." There needs to be some planning for contingencies from now until after the termination. And that may involve some training for staff that should be in place anyway on how to recognize potential problems and what to do.