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Jul 29, 2015

By Eric B. Meyer

Many of us, including me, have a loved one or friend who has suffered through mental illness.

With proper treatment, counseling and support, the symptoms may be controllable. However, sometimes medication and treatment aren’t enough.

Mental illness, which generally qualifies as a disability under the Americans with Disabilities Act, can disrupt the workplace. And, it can create a big problem where the employee is a threat to himself or others.

In Mayo v. PCC Structurals, the plaintiff suffered from major depressive disorder. For many years, through medication and treatment, he worked without incident. However, in 2010, a supervisor supposedly bullied Mayo and a few co-workers. After Mayo complained, he supposedly threatened to kill the supervisor, management, and other employees.

After HR was made aware of these threats, the Senior HR Manager met with Mayo who, when asked if he planned to carry out his threats, said that “he couldn’t guarantee he wouldn’t do that.”

The police were called, Mayo was suspended, and, ultimately, hospitalized for two months.

During his hospitalization, Mayo used FMLA leave. Toward the end of this leave period, a doctor cleared Mayo to return to work. Mayo also indicated that he wanted to return to work.

However,  the parties disagree as to whether Mayo promised that he would not repeat his threatening behavior. The company fired Mayo.

Direct threat trumps duty to accommodate

Under the ADA, an employer must provide a reasonable accommodation to an employee with a disability if doing so will enable that individual to perform the essential functions of the job. However, there are limits. For example, an employer may refuse to employ an individual who poses direct threat to the health or safety of others. Thus, the mere potential for future violence is enough.

Additionally, as the Ninth U.S. Circuit Court of Appeals in San Francisco determined, when an employee actually threatens harm against another employee, that employee is not qualified to perform the essential functions of the job:

Even if Mayo were disabled (which we assume for this appeal), he cannot show that he was qualified at the time of his discharge. An essential function of almost every job is the ability to appropriately handle stress and interact with others. And while an employee can be qualified despite adverse reactions to stress, he is not qualified when that stress leads him to threaten to kill his co-workers in chilling detail and on multiple occasions (here, at least five times).

This vastly disproportionate reaction demonstrated that Mayo could not perform an “essential function” of his job, and was not a “qualified individual.” This is true regardless of whether Mayo’s threats stemmed from his major depressive disorder.”

Disability or not, don’t tolerate threats of violence

Hopefully, you never encounter this issues. However, when an employee to kill another co-worker, take those threats seriously.

Contact the police, remove that employee from the workplace, and end the employment relationship immediately. Do not give that employee a chance to follow through on his threat.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.