If you have any exposure to the daily news or, in some places, just look out your window, you can find more than ample proof that the world is a scary place. Life can be dangerous and difficult, and everyone is constantly looking for ways to minimize their risk.
Recent Shooting Sparks Concern
Sometimes our concern seems excessive. Everyone is familiar with the warning on any small electrical appliance, such as your toaster oven, that tells you not to use it in the shower or bathtub. It makes you want to write in and ask the manufacturer, who’s making toast in the bathtub? Sometimes, like with the recent tragedy involving WDBJ employees in Virginia, circumstances leave us all shocked and scrambling for a way to ensure our safety.
The shooting in Virginia was terrifying. Vester Flanagan, a former employee, gunned down two coworkers on live television and used his own camera to record and later post the incident online. One of the victims, Adam Ward, had complained about the gunman to HR. Flanagan apparently believed the other victim, Alison Parker, had interacted with him in an inappropriate way.
Such heinous violence automatically spurs employers to review their hiring and screening processes, internal processes, including basic security measures like locking the doors, and other ways to keep employees safe. A workplace free from violence is particularly important considering the standards set by the Occupational Health and Safety Act (OSH Act), which provides that employers must maintain “a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm.” That broad statement is referred to as the General Duty Clause.
Although the OSH Act doesn’t contain detailed standards for maintaining a safe workplace, the federal agency that enforces the Act, the Occupational Safety and Health Administration (OSHA), has issued safety guidelines and recommends that employers adopt a violence prevention program, which can be incorporated into the employee handbook.
How Can Violence Prevention Be ADA-Compliant?
In several recent news articles and blogs, writers have been circulating the idea that employers need to inquire more strictly into mental health issues at the time of hire or during the course of employment. However, as you know, the Americans with Disabilities Act (ADA) prohibits inquiries of that type into a job applicant’s background. Moreover, an employer cannot legally inquire about current employees’ medical conditions, except under fairly limited circumstances.
There have also been calls for forced mental health evaluations when people exhibit disturbing or “out-of-the-norm” behavior. Those demands were particularly strong after a suicidal Germanwings copilot crashed a plane into the French Alps last March, killing 144 passengers and six crew members. However, even in these situations, there are limitations that wouldn’t allow an employer to force an employee to undergo a mental health examination, particularly in industries less safety-sensitive than the airline industry. As you can imagine, determining what’s “out of the norm” could leave an employer open to all manner of discrimination complaints and concerns about disability discrimination and profiling.
None of this diminishes employers’ concerns about finding ways to keep employees safe. Immediately after the Virginia shooting, several employers canceled planned terminations for fear of a copycat action. But how do you protect employees when a former coworker decides, two years after the allegedly offensive or discriminatory interaction, to exact revenge with a gun?
There is very little that you can do to inquire into prospective employees’ mental health or stability. You can certainly check references with former employers to determine whether the employee worked well with others, was capable of teamwork, or had any red flag issues. Of course, the former employer must be willing to talk to you. Because many employers stick to “name, rank, and serial number” references to avoid lawsuits by former employees, useful data might not be available.
You can also employ basic processes such as North Dakota courts online search to determine if a candidate has an extensive criminal history or contract with a third-party background check company to address such issues. However, having a criminal record isn’t necessarily indicative of future problems on the job, and too much reliance on old criminal convictions can run afoul of Equal Employment Opportunity Commission (EEOC) guidelines.
You could do skills-based testing, but many tests have come under legal fire for being intrusive and containing inherent bias. Discrimination claims stemming from employment testing are fairly common. Further, testing cannot account for a person’s future mental changes, and the progression of mental health issues is tough to predict. Even if there was some magic crystal ball that allowed you to say “this person has an issue,” you would still have to make an ADA-based assessment about whether a perceived problem could be reasonably and appropriately accommodated in the workplace.
What if I’m Concerned About a Current Employee?
What happens when an existing employee begins behaving erratically? Acting out in ways that are inappropriate? Showing a disproportionate amount of anger? Or exhibiting any of a myriad of behavioral issues that can affect his own and his coworkers’ performance? Certainly, if the issues appear to be related to drug use and you have a properly published and implemented drug-testing policy that allows for reasonable-suspicion testing, you could require the employee to undergo a drug screen.
Referring the employee to your employee assistance program (EAP) could also be an effective response to behavioral changes. Keep in mind that if your EAP requires counseling, you could be accused of violating the ADA by forcing an employee to undergo certain kinds of evaluation or treatment. And although your EAP may be a valuable workplace tool, it isn’t a panacea. An EAP is typically a short-term process that includes recommendations for long-term counseling when there is a continuing need. An employee with significant mental health issues is unlikely to be fully served by an EAP, and a referral to the program may only trigger further anger or upset.
You might choose to talk to the employee directly. The ADA requires employers to engage in an interactive process. If an employee is behaving in a way that makes you think a health condition is having a negative impact on his work performance, it’s incumbent upon you, as the employer, to engage in the interactive process. That means initiating a conversation with the employee about his performance issues, any factors that may be affecting his ability to perform his job, and what, if anything, might help him alleviate and address any problems. Providing an employee the opportunity to talk with you about any workplace issues can help offset concerns and problems.
You can also offer the employee leave protected by the Family and Medical Leave Act (FMLA) if appropriate. Leave policies help when they allow leave for treatment, don’t punish the employee, and are well published so employees understand how to request leave. If an employee doesn’t have any leave or doesn’t know the procedure for requesting it, he might not take time off to seek treatment.
The ADA creates a narrow exception for employers that terminate employees who pose a direct threat to their own safety or the safety of others. The EEOC has defined “direct threat” as a “significant risk of substantial harm to the health or safety of [the] employee or others, which cannot be eliminated or reduced by a reasonable accommodation.”
An individualized assessment to determine if an employee poses a direct threat should include consideration of (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. Before taking any adverse employment action against an individual who may have a perceived or actual disability, you should document facts that support each of those four factors. Although the employee may still file a discrimination claim under the ADA, a thorough investigation and documentation establishing that he posed a direct threat to workplace safety may help insulate your company from liability.
If you choose to speak with an employee about his behavior, do it in a way that is nonconfrontational and supportive, make sure you have another person present, and never get between the employee and the door. In fact, anytime you conduct an employee interview, even if you have no concerns about the employee’s behavior, don’t put yourself between him and a way to leave.
If you try to talk an employee into staying, touch him, or engage in any other behavior that could impede his exit from the room, not only could you trigger inappropriate behavior, but you could also be accused of assault or even kidnapping. If the employee wants to storm out of the room, let him storm. You can follow him out to make sure he either calms down at his workstation or leaves the premises.
I’m Scared of an Employee—What Do I Do?
When you have specific concerns about an employee’s behavior, it’s incumbent upon you to put in place a safety plan to address the issue. If you already have a workplace safety plan, review it to check the options that are available to you. Some employers don’t have on-site security or are located in rural areas with no law enforcement close by, which creates uncertainty about how to manage confrontational situations. You should be aware of the resources you can rely on to handle any issues.
Your local police or sheriff’s department. If you’re conducting a difficult termination or an employee is making threats or behaving erratically, contact the police or your local sheriff. Inform the officer or deputy that there has been a problem, ask for advice, and make sure the office knows that if someone from your company calls, you probably need assistance right away. You can even ask for extra patrols by your workplace if you anticipate vandalism or any other property crime. Make the police aware of when the termination will occur in case they want to help you out by having a patrol nearby. Off-duty officers frequently can be hired to provide security or recommend someone.
Domestic abuse and other violence hotlines and websites. A website can provide a wealth of information on how to manage an erratic person who is prone to violence. In some cases, the person with violent tendencies targets an individual employee or small group of employees. Domestic abuse websites can provide information on how to avoid potential issues as well as how to set up additional safety measures for individual employees.
Some proactive measures might include varying the time the potential victim leaves the building or ensuring that workers always leave in groups. You may need to change where an employee parks so she is closer to the front door, her car is under a light, or she has more visibility. Provide the employees at your front desk with a picture of the offender, and train them on what to do in case of an emergency.
If you have safety concerns about a terminated employee, change the security codes and the keys to your doors to ensure the former employee cannot simply walk through if he returns to the premises. You may also need to help employees change their phone numbers, get new phones or a new e-mail address, or take other actions to minimize their contact with a former employee.
Restraining orders. Restraining orders can be useful but are typically granted only upon request after someone has made an actual threat. Merely being afraid of an employee usually won’t be sufficient to convince a court to issue any type of restraining order. If an employee has made specific or direct threats, has destroyed property, is stalking someone at your workplace, or is making abusive or obscene phone calls, then the court will consider a restraining order against him. If you are granted a restraining order and the former employee wasn’t present in court when it was granted, you will want to mail him a copy of the order and provide local law enforcement with a copy so they know it’s in place.
General physical security. Always double-check the general physical security of your workplace. Make sure doors are locked, passwords and locks are changed, and any electronic access to the premises is cut off. Warn employees not to sit in the darkest corner of the parking lot alone at midnight. Ensure that security lights around the property and street lights are properly lit.
Dealing with potential workplace violence starts to feel like a lose-lose situation when you’re an HR director. You begin to wonder if you should start playing the lottery and hope your winnings allow you to retire and avoid facing any of these issues. But you have to realize there’s no way to provide perfect security. As HR, you must evaluate the circumstances, assess the variables, and make judgment calls within the parameters of your situation, your policies, and the requirements of the law. Put safety first, and take it seriously.