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Can we demand certification of violent employee’s alleged mental illness?

by on
in Employment Law,Human Resources

Q. One of our employees physically threatened her co-workers. When confronted about the incident, the employee claimed that her behavior resulted from being bipolar. May we ask the employee to provide medical certification to prove that she is bipolar?

A. Yes. In effect, the worker is requesting a reasonable accommodation in the form of different discipline for threatening a co-worker. You cannot determine the severity and extent of the necessary accommodation without knowing what medical restrictions the employee is under.

With the medical information in hand, you can assess whether the employee is actually disabled within the ADA’s definition.

Your employee likely qualifies as ­disabled under the ADA. The EEOC’s “Final Regulations Implementing the ADAAA” provides examples of impairments that should easily be concluded to be disabilities, including bi­polar disorder.

What are our accommodation obligations if it turns out she is, in fact, bipolar?

Q. If she is disabled are we required to provide an accommodation for her?

A. Not all disabled employees are entitled to an accommodation. However, once the employer knows of the disability and the employee’s need of an accommodation, the reasonable accommodation process begins.

Normally, the employee is responsible for informing the employer that he or she needs an accommodation. But employers must be alert to statements indicating a possible need for accommodation. The law does not require employees to use any “magic words” when requesting an accommodation. Start the accommodations process as soon as you know the employee may need assistance.

In this case, the search for a reasonable accommodation began when your employee revealed her bipolar condition. Since the employee has now revealed a disability, you may ask the employee to provide reasonable medical documentation confirming the disability. The documentation, however, should be limited to a doctor’s note or other medical documents reflecting that the individual has a disability (although the doctor is not obligated to disclose the particular disability) and that the employee requires accommodation.

Keep the documentation confidential and maintain it in a file separate from the employee’s personnel file. You are not permitted to require the employee to disclose her entire medical or mental health history, but may request that limitations be specified.

Is forced leave an option in a case like this?

Q. Are we permitted to ask the employee to take an unpaid leave?

A. In terms of types of reasonable accommodations, the EEOC and the courts almost uniformly agree that an unpaid leave of absence may qualify as a reasonable accommodation. As the 9th Circuit noted in Humphrey v. Memorial Hospitals Association, unpaid leave may be a reasonable accommodation if it would “reasonably accommodate an employee’s disability and permit him, upon his return, to perform the essential functions of the job.”

While unpaid leave may be one option, employers can find many others by visiting the Job Accommodation Network website.

The site’s Searchable Online Accommodation Resource (SOAR) is invaluable. It lets employers explore a number of possible accommodations, based on the employee’s condition and essential job functions.

Thoroughly document how you used SOAR to search for accommodations, and be sure to clearly state any reason you may have for finding any of the site’s suggested accommodations to be unreasonable.

Final note: It’s important for you to take into account the threats the employee made to co-workers. The EEOC’s “ADA Enforcement Guidance” states that an employer may discipline an individual with a disability for violating a workplace conduct standard even if the misconduct resulted from a disability, provided that the workplace conduct standard is job-related for the position in question and is consistent with business necessity.

The guidance states, “For example, nothing in the ADA prevents an employer from maintaining a workplace free of violence or threats of violence, or from disciplining an employee who steals or destroys property. Thus, an employer may discipline an employee with a disability for engaging in such misconduct if it would impose the same discipline on an employee without a disability. Other conduct standards, however, may not be job-related for the position in question and consistent with business necessity. If they are not, imposing discipline under them could violate the ADA.”

If you opt for unpaid leave as an accommodation option, make sure the decision does not conflict with the company’s FMLA policy regarding the substitution of paid leave.

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{ 3 comments… read them below or add one }

Louise October 16, 2012 at 11:26 am

Since the employee did not notify the employer of the medical condition until after the threat, the employee is not shielded from discipline for violating workplace policy. The employer can discipline the employee, and then enter into the interactive process regarding an accommodation. Otherwise, employees would be claiming disabilities every time they violate policy.

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bbixenstine October 16, 2012 at 8:43 am

karen is right. It is not a reasonable accommodation to excuse an employee from the disciplinary consequences of conduct on the basis of the employee’s disclosure of a disability. The disclosure may be the basis for a last chance agreement, if the employee would other wise have been discharged, and that last chance agreement could involve a requirement of some kind of treatment. If the employee requests some other kind of accommodation (such as leave to get treatment) then, assuming the employee is not justifiably discharged for the threat, the employer has to address the request as any other request for accommodation by a disabled person.

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karen October 15, 2012 at 2:20 pm

An employer is not required to accommodate a violent employee, as the same represents an undue hardship to the employer. Furthermore, if the offending employee causes harm to others, the employer could be exposed to liability. The existence of a disability does not require an employer to maintain an unsafe work environment. Such a requirement would frustrate the intent of the ADA.

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