Fear of violence: Can we terminate employee who has mental illness?

Q. We discovered that one of our employees has a history of unprovoked violent fits due to schizophrenia. We certainly sympathize with our employee’s struggle, but we also worry about the safety of customers and other employees. Does state law allow us to fire him for this reason?

A. Though state law provides many employment protections for those with disabilities, California does allow an employer to discharge a disabled employee “who, because of the employee’s medical condition … cannot perform in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations.”

Before taking such an action, the employer needs to engage in an interactive process to attempt to find an accommodation that would enable the individual to perform his or her job in a safe manner. It must also show that there is an imminent and substantial degree of risk of harm if the employee were to continue working for the company. Relevant regulations require that the following be considered when determining whether the employee is a danger to others:

• The duration of the risk

• The nature and severity of the potential harm

• The likelihood that the harm would occur

• The imminence of possible harm

• Relevant information about the employee’s past work history.

Federal law has a similar defense for employers covered by the ADA: the “direct threat” standard.