If you are an HR professional, you surely worry about workplace violence. Whether it is an “active shooter” at work or just an argument that turns physical between two employees, the concern about workplace violence and the harm it can cause — both to those directly involved and everyone else who works there — is quite real and undoubtedly scary.
I recently read an article from the Business Journal publications that I found useful: “Preventing Workplace Violence: What to Listen For, Look For, Notice and Do.” This article discusses issues surrounding workplace violence prevention and offers some “identifying signs and symptoms” that can be a precursor to violence. It also lists what too look for, what to listen for and what to notice as possible signs of future or imminent danger. Finally, the article addresses setting up a reporting system so that there is a safe, useful way for individuals to report what they see, hear or notice that might be a sign of a problem. The author, Dr. Mark Goulston, is a “former crisis psychiatrist” and “FBI hostage negotiation trainer” so he certainly appears to have useful experience and insight from which to offer advice.
As a Labor & Employment attorney, I couldn’t help but notice that some the article’s practical and necessary advice also touches on what can be medical issues in the workplace — and that triggers concerns about the ADA (as well as the FMLA and state workers’ compensation laws too). While we need to try to prevent workplace violence, we don’t want to end up with employment litigation if we can help it. The question often arises about what to do if an employee “seems” to or is known to be dealing with a mental illness or addiction that may be causing or at least may be having an impact on their behavior that suggests violence is a possibility. How do you address the behavior without discriminating on the basis of a disability?
There is rarely an easy answer in this situation. One big suggestion is to try to separate the employee’s actual behavior or conduct from any medical condition. A medical condition may cause the employee to loose his temper, but the employee can still be required to exercise control over his behavior. So, while the medical condition may cause the employee to genuinely believe he is being picked on by his managers, he can be required not to shout at them or call them names, or to threaten to harm them. When it comes to employee actions and behaviors, the employee’s response of “my disability made me do it” is often an insufficient explanation, provided the employer doesn’t complicate the situation by taking action based on the underlying condition or its perceptions or fears about it, rather than acting solely to the employee’s actions.
Speaking of perceptions, it is critical that employers (and their HR professionals and managers) do not perceive an employee as having a mental illness. While we need to be caring and empathetic with our employees, if you are not a doctor you shouldn’t be making medical diagnoses. The ADA protects employees who aren’t actually disabled where the employer treats them as if they are. There is never a reason for that to occur. Deal with the employee as you find her, not as you might believe she is. (You are not a doctor, even if you play one on TV or even if you stayed at a Holiday Inn last night.)
Finally, create rules, policies and procedures that focus on what is acceptable conduct or unacceptable in the workplace, and address violations of those rules fairly and evenly across the workforce. If bringing a weapon to work is something you deem too risky in your workplace, establish a “No Weapons at Work” policy (consistent with and as permitted by state and local laws). But you cannot just enforce that rule against those you think might use them at work, but not against those you don’t consider a “risk.” That type of subjectivity or inconsistency is often the beginning of a long, difficult lawsuit.
Dealing with the possibility of workplace violence is a difficult task, and getting outside help is usually wise. Sometimes the risk of litigation cannot be totally removed, and a decision to keep employees safe and deal with a lawsuit later is often the right one. But, handling the situation properly from the start, and focusing on the employee’s actual conduct, removes many of the risks — both of a lawsuit and of actual violence occurring.