February 23, 2016
• Statistics show workplace violence is on the rise. Job related homicides are a leading cause of death for employees – and the leading cause for female employees
• 2 million workers each year are victims of, or threatened with, violent crime in the workplace.
Potential Areas of Liability for Employers
• Negligent Hiring
• Negligent Retention
• Assault and Battery
• Wrongful Death
• Breach of a Duty to Warn
• OSHA Violations
• Workers’ Compensation
• Unlawful Harassment
• Americans with Disabilities Act
• Title VII
• Fair Credit Reporting Act
• Invasion of Privacy
• False Imprisonment
• Intentional Infliction of Emotional Distress
• Defamation
Steps To Avoid/Prevent Workplace Violence
Hiring and Screening Practices - Proper screening requires:
1. All applicants thoroughly fill out an application.
2. Outside background checks, including criminal records (comply with Fair Credit Reporting Act and state law)
3. Reference checks
4. Psychological screening; medical exams
a. ADA limitations - post-offer, job-related
5. Drug testing
Zero-Tolerance Policy
• Key elements:
• Commitment from top management
• Training for supervisors
• Strong statement of position
• Communicate reporting procedures
• Optional search clause
• Do not include language to guarantee confidentiality Assess and Enhance Security
• Conduct a physical security assessment. Limit physical access.
• Create a Threat Assessment Team to monitor trends in violent incidents or threats, set or recommend policy changes, and suggest ways to help limit threats of violence.
• Develop a response plan to acts of violence.
Human Resources Program
• Promote open communication
• Maintain favorable work environment
• Boost employee morale
• Provide advancement opportunities
• Show sincere interest in “quality of life” issues
• Treat all employees fairly and consistently
Employee Coaching, Performance Evaluations and Terminations
• Conduct counseling sessions, performance evaluation meetings and terminations with dignity and respect.
• Do not surprise an employee with termination.
• Utilize exit interviews
• Watch for warning signs surrounding these events
Identify Solutions
1. Can you ask an employee to undergo a “fitness for duty” examination?
2. Can you require it?
Compelling Mandatory Treatment?
• It is unlikely you will be able to compel an employee to undergo treatment.
• However, there may be some exceptions involving substance abuse issues.
• You can encourage voluntary cooperation with EAP or other treatment opportunities
• Cf: “Last chance” agreements
NOTE: By proceeding down this path, you may be “perceiving” the employee to be disabled. Focus on objective behaviors; don’t assume the employee is “crazy”
Key ADA Concepts
• An employer need not hire or employ individuals with disabilities if they pose a “direct threat” but this is a high standard and requires an individual assessment .
• A “direct threat” means a “significant risk of substantial harm that cannot be eliminated or reduced through reasonable accommodation”
• A finding of “direct threat” must be based on the best available objective medical evidence that relies upon the most current medical knowledge
• Factors to consider in making direct threat determinations:
• Severity of harm
• Likelihood of harm
• Imminence of harm
ADA and Employee Conduct Rules
• Employers need not forgive or excuse misconduct, even if it is caused by a disability, as long at the conduct rule is job-related and consistent with business necessity
• Certain conduct standards that exist in all workplaces and cover all types of jobs will always meet this “job-related and consistent with business necessity” standard, such as prohibitions on violence, threats of violence, stealing, or destruction of property.
• Employers may prohibit insubordination towards supervisors and managers and also require that employees show respect for, and deal appropriately with, clients and customers.
Drugs and Alcohol – What Are Your Obligations
• The ADA, sets out certain actions which an employer may take with respect to drugs and alcohol in the workplace including:
• May prohibit illegal use of drugs and use of alcohol at the workplace;
• May require that employees not be under the influence of alcohol or drugs at the workplace;
• May require that employees conform to the Drug-Free Workplace Act of 1988;
• May hold an employee who uses illegal drugs or alcohol to the same standards for job performance and behavior as other employees, even if unsatisfactory behavior is related to drug or alcoholism.
Drugs and Alcohol – What Are Your Obligations
• The ADA makes clear that the exclusion of illegal drug use does not apply to an individual who:
• Successfully completed a supervised drug rehabilitation program and is no longer engaging in illegal use of drugs;
• Is participating in a supervised rehabilitation program and is no longer engaging in use; or
• Is erroneously regarded as engaging in illegal drug use.
Practical Steps to Reduce ADA Exposure
1) Develop Fitness for Duty Policies
2) Develop Guidelines for making individualized direct threat assessments
3) Develop template letters and forms to send to doctors
4) Develop and uniformly enforce conduct rules
5) Act on issues in timely and consistent fashion