There is never a place for workplace violence, but what to do about it?
On the one hand, you have the rights of the individual worker to consider. Even if there is violence or threatening behavior on the worksite, unless you have explicit language in your employee handbook that bans this behavior, the employee’s right to work at that worksite cannot be compromised without cause and without due process.
On the other hand, other workers who might be, or have been, subjected to violent behavior, actions or tendencies, should not have their rights to work infringed by others. It can be a major dilemma for employers, both public and private, and which direction you fall may impact your company for years to come.
In a previous issue of Professional Safety magazine, the legal dilemma of workplace violence was featured in a couple of case studies, one in which a court affirmed the firing of a violent employee, and the other where an administrative judge ruled that a healthcare firm did not do enough to protect its worker from a violent client.
Case 1: Threats are Not a Disability
The first of the two case studies regarding workplace violence had to do with a court case involving an individual named Timothy Mayo, who sued for discrimination after being fired following the making of some death threats against his supervisor and other employees. Mayo claimed that he was found to have a mental disorder and that his firing was not in compliance with the Americans with Disabilities Act as well as an Oregon state law designed to protect disabled workers from being fired due to their handicap.
However, the U.S. Court of Appeals for the Ninth Circuit upheld lower court rulings that the company was justified in its firing because the employee could not show that he was deemed a “qualified” individual under the ADA and thus was not entitled to protections. Once Mayo had made threats against the life of his supervisor and others, there was an investigation by the compamy. Mayo admitted when questioned that he would not guarantee that he would not follow through on his threats, so he was first suspended and banned from the property.
When it wa found that Mayo was considered a threat to others and himself, he was voluntarily admitted to the hospital for about 60 days of treatment. Though a psychologist had deemed Mayo fit to return to work, the company fired him just before the medical leave ended, saying that the threats were so strong that the company could not, in good faith, keep Mayo on the payroll, citing him as a risk to all workers – despite the psychologist suggesting a new supervisor assignment would rectify the issues.
The good news is, the company was found to be completely within its rights through the original summary judgment and the appeals-court affirmation, that threating to kill employees is a sound ground for termination, and a diagnosed mental disorder after the fact does not warrant ADA protection. The bad news was the company paid out hundreds of thousands of dollars in legal fees fighting this issue in court for several years. However, the case did provide some clarity and guidance in how to use the ADA in employment matters.
Case 2: Life-Saving Due Diligence?
The second case of workplace violence ended up costing an employee her life, simply because of a lack of communication. In this case, a health-management case worker was killed by a client, of whom the employee had noted concern.
The worker was a case manager for a health-services firm, one which conducts mental and physical health assessments and coordinates care and case management for the insureds of various health insurance companies. A young employee was assigned a client who had a violent history and a history of mental health problems. The employee went to conduct an unannounced visit of the client and have a preliminary meeting due to being a new case manager for the client. The employee wrote notes about the interview, stating that she had concerns and fears about being alone with the client in his house, and expressed a desire to conduct any future assessment outside the home and/or have another case manager with her for the assessment.
Six months after writing these notes, the worker was stabbed to death by this very client while outside the client’s home.
An administrative law judge, in investigating the case, found that the company did not properly inform the employee of the client’s violent history and his mental health history prior to assigning her the case, and the company did not respond, much less read, any of the notes the employee prepared from the initial interview six months before her death.
The judge ruled that the company was “inadequate” in providing due diligence protection of workers and being negligent in understanding and communicating risks to workers who were working with clients that had risky behaviors or mental instabilities.
Do you have a workplace-violence situation in your office, either involving an employee, vendor or client? Maybe your situation is not exactly like either of these case studies, but here is hoping these can at least guide you in the right way to handle workplace violence in your particular situation so risks of injury are mitigated as much as possible.