Recent studies have shown approximately 4.2 million to 13.4 million working employees have mental disabilities.  What is an employer to do when employees with mental disabilities exhibit disruptive conduct or threaten violence in the workplace if their conduct may be associated with their disabilities?
Employers must balance disabled employees’ legal protections with safety concerns.  These employees have legal protections and may be entitled to reasonable accommodations under the Americans with Disabilities Act (“ADA”) as well as the Minnesota Human Rights Act (“MHRA”).
On the other hand, the ADA permits employers to enforce standards of conduct and performance that are job-related and consistent with business necessity (e.g., disciplining an employee who makes threats of violence or steals company property).  Similarly, the ADA allows employers to enforce uniform disciplinary rules against employees provided that they are enforced in the same manner for non-disabled employees.  These guidelines apply even where the employee’s misconduct is caused by his or her disability.  See, e.g., Weesner v. U.S. Bancorp, 2011 WL 4471765 (D. Minn. 2011); Lenzen v. Workers Comp. Reinsurance Ass’n, 843 F. Supp. 2d 981 (D. Minn. 2011), aff’d, No. 12-1211 (8th Cir., Feb. 13, 2011).
The ADA also authorizes an employer to exclude an individual from a position if he or she poses a “direct threat,” which is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”  42 U.S.C. § 12113(b); 29 C.F.R. § 1630.2(r).  The determination of whether an employee poses a direct threat must be made on a case-by-case basis and not based on generalization or stereotypes.  See Brunko v. Mercy Hosp., 260 F.3d 939 (8th Cir. 2011) (“The provision addressing perceived disabilities ‘is intended to combat the effects of “archaic attitudes,” erroneous perceptions, and myths that work to the disadvantage of persons with or regarded as having disabilities.’”).
Minnesota law also holds that employers have a defense to disability claims under the MHRA if an employee poses a serious threat to the health or safety of the disabled person or others.  Minn. Stat. §363A.25.
Takeaways:  Employers may require both disabled and non-disabled employees to comply with standards of conduct and performance that are job-related and consistent with business necessity.  Employers may also exclude individuals who pose a direct threat.  An employer must make an individualized assessment when determining if an employee poses a direct threat.  The employer should seek medical judgments and rely on the most current medical knowledge and factual evidence regarding the employee’s potential to be a direct threat.  Employers should also seek legal advice if they are unsure whether an employee poses a direct threat in the workplace.