Although you may not remember Andreas Lubitz by name, you undoubtedly remember his story. On March 24, 2015, Mr. Lubitz, the co-pilot of Germanwings Flight 9525, intentionally crashed an airplane carrying 144 passengers and 6 crew members into the side of a mountain. Mr. Lubitz reportedly suffered from suicidal tendencies and previously had been declared unfit to work. Maybe you also remember Vester Lee Flanagan II, the disgruntled former newscaster who, in August of 2015, killed a WDBJ-TV journalist and cameraman during a live morning broadcast. Prior to his termination from WDBJ, co-workers had complained that they felt threatened or uncomfortable working with Flanagan. Lest you think this is a recent trend, you may recall the series of incidents beginning in the mid-1980s which gave rise to the term "going postal." These include the story of Larry Jasion, the disgruntled postal mechanic who, in May of 1993, killed a co-worker and shot a supervisor. According to a New York Times article regarding the incident, six weeks before the shooting, a co-worker told supervisors that she was concerned about Mr. Jasion. As a result of this report, postal inspectors and postal management interviewed Mr. Jasion and determined that he did not pose a threat.
Events like these send chills down any employer's spine and prompt questions regarding what an employer can do to address mental health issues in the work place. According to the National Alliance of Mental Illness, approximately 1 in 25 adults in the United States experiences a serious mental illness in a given year (i.e., one that substantially interferes with or limits one or more major life activities). And, approximately 16 million adults in the United States had at least one major depressive episode in the past year (i.e., a period of two weeks or longer during which there is a depressed mood, loss of interest, loss of pleasure plus additional symptoms such as problems with sleep, eating, concentrating, energy or self-image). Read more here. As such, it is the rare employer who will not be affected by mental health issues in the workplace.
Employers are unquestionably in a difficult situation. Many mental illnesses are disabilities under the Americans with Disabilities Act (ADA), and an employer may not discriminate against a "qualified individual on the basis of disability..." 42 U.S.C. § 12112(a). Terminating an employee because of a mental illness could result in claims against the employer for discrimination under the ADA. Ignoring a mental illness, also could result in claims against the employer for, among other things, negligent retention or hiring. Recently, a United States District Judge for the Eastern District of Pennsylvania acknowledged the competing public interests between "the need for a safe workplace" and "the need to accommodate and treat mental illness." Walton v. Spherion Staffing, LLC, 2015 WL 171805, *1 (E.D.PA). The facts of Walton involved an employee who wrote a note to his supervisor advising her that he was having homicidal tendencies, "…I'm scared and angry. I don't know why but I wanna kill someone/anyone. Please have security accompany you if you want to talk to me…." Id. The employee was fired three weeks later and filed suit claiming the employer failed to accommodate his disability (depression), thereby violating the ADA.
In defending against Walton's claim, his former employer moved for judgment on the pleadings and argued, in part, that proclivities towards violence disqualify a disabled person from protection under the ADA. The employer argued that the decision to terminate the employee based on his threats was "not only lawful under the ADA…but when viewed through the eyes of [the employee's] potential victims, it was likely required." Id., *3. In its brief, the employer also argued that the employee's threats of violence meant he was not qualified to perform the essential functions of his job and, therefore, no accommodation was needed. Finally, the employer cited multiple cases in which courts found that employees who made threats at work were not "qualified individuals" under the ADA and, thus, were not entitled to the protections of the ADA. Id., *3.
Not persuaded, the court denied the motion to dismiss finding that "fear of the mentally-ill can skew an objective evaluation of risk." Id., *3. The court noted there was no indication that the employee had a history of violent conduct and also stated that "termination of an employee is hardly a guarantee of safety. To the contrary, recent history is replete with incidents on which a disgruntled former employee returned to the worksite, with tragic results." Id. (citing examples from the media). The case settled a few months later.
As Walton shows, employers who take affirmative action to avoid potential threats from unstable employees face the real possibility of being sued for unlawful discrimination. Unfortunately, there is not always a clear line between complying with the ADA and protecting others. There are, however, some guidelines for dealing with an employee with a mental health issue.
The ADA applies if the employer knows or reasonably should know of a mental illness. Not all violent or threatening behavior is caused by a mental illness and, therefore, there is no automatic protection under the ADA for violent and dangerous employees. However, if an employer knows or has reason to know that an employee's improper behavior is caused by a mental illness, the protections of the ADA apply. Notably, courts do not necessarily require that an employer be directly notified by the employee that he has a mental illness. The employee's behavior may be so severe and obvious that it would be reasonable to infer that the employee was disabled. For example, last year in Yarberry v. Gregg Appliances, Inc., 625 Fed. Appx. 729 (6th Cir. 2015), the Sixth Circuit found that an employer had reason to know that the employee was suffering from a mental illness – even though the employer had not been specifically notified of the condition. The employer terminated the employee after he exhibited bizarre behavior over the course of several hours such as wandering around the store in the middle of the night; sending a string of odd text messages to his regional manager including a message stating that his fiancé thought he was "nuts" and wanted to check him into a hospital; and, emailing corporate executives with strange and nearly incoherent "URGENT" messages. 625 Fed. Appx. at 731. The Sixth Circuit recognized that the onset of a mental illness may affect an employee's ability to communicate his disability to his employer; thus, when the facts support that an employer had reason to know of the disability, the ADA protections will apply. In Yarberry, the Sixth Circuit found that even though the employer did not have direct notice of the employee's mental illness, it had reason to know the employee was suffering from a disability because the employer knew (1) the employee's fiancée believed he needed to be hospitalized; (2) the employee had evidenced illogical and irrational thinking; (3) the employee had passed a drug test; and (4) was subsequently placed in a psychiatric hospital. Id., 738. Based on these facts, the court found that the employee had met his prima facie case for discrimination under the ADA. Id.
The employer may obtain an examination of the employee. Employers who suspect a mental illness is affecting an employee's ability to perform his job safely (for himself and the safety of others) may require an examination of the employee provided the examination is "job-related and consistent with a business necessity." 42 U.S.C. § 12112(d)(4). An examination may be appropriate under this standard where the employer has objective evidence to suspect that the employee constitutes a direct threat. A "direct threat" is defined as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3). The EEOC identifies four criteria that may be considered when determining whether an individual would pose a direct threat: "(1) [t]he duration of the risk; (2) [t]he nature and severity of the potential harm; (3) [t]he likelihood that the potential harm will occur; and (4) [t]he imminence of the potential harm." 29 C.F.R. § 1630.2(r). Sometimes, the conclusion that an employee constitutes a "direct threat" is an easy call. For example in Mayo v. PCC Structurals, Inc., 795 F.3d 941 (9th Cir. 2015), the Ninth Circuit affirmed summary judgment in favor of an employer who terminated an employee who had threated "to kill his co-workers in chilling detail and on multiple occasions (here, at least five times)." 795 F.3d at 944. Other times, like the example of Walton at the beginning of this article, the issue of whether an employee is a "direct threat" is more difficult to determine. Each situation must be evaluated based on the specific facts involved and an examination of the employee may help the employer determine the appropriate next steps.
USLAW Magazine, Fall/Winter 2016 Issue