1. Dealing with Mental Health and Violence in the Workplace:
Leadership Response in Times of Crisis

2. Melissa Judd Shareholder, Littler, Houston (713) 652-4773

3. Agenda
Understanding Suicide and Domestic Violence as a Workplace Violence Concern
The Direct Threat Defense and Employer Obligations in the Context of Mental Health Disabilities
Practical Suggestions for Responding to Workplace Violence Issues Arising From Suicide or Domestic Violence

4. Understanding Suicide and Domestic Violence as a Workplace Violence Concern

5. OSHA Definition: “Workplace Violence”
Workplace violence is any act or threat of physical violence, harassment, intimidation, or other threatening disruptive behavior that occurs at the work site. It ranges from threats and verbal abuse to physical assaults and even homicide.

6. Domestic Violence is a Workplace Issue
Source: The National Intimate Partner and Sexual Violence Survey (NISVS): State Report,

7. Suicide Facts
Source: Centers for Disease Control and Prevention, Preventing Suicide Fact Sheet,

8. Case Study
Rebecca has been employed with Acme retail store for 5 years. Rebecca’s performance over the years has been average to above-average. She has not demonstrated any significant problems with regard to her attendance, performance, or behavior. Recently, however, Rebecca’s co-workers have noticed that Rebecca seems depressed and anti-social. She rarely speaks to her co-workers casually anymore and has stopped going to lunch with her closest colleagues. Her coworkers are worried and wondering whether something may be going on with Rebecca, but they can’t figure out what it is. Rebecca has demonstrated this behavior for about one month now.

9. Questions
What can the company do to provide coworkers the tools and knowledge they need in order to know what to do in a situation like this?
What do the coworkers need to know about how they should interact with Rebecca based on Rebecca’s demonstrated behavior to minimize risk of a legal claim against the company?
What do you think the coworkers should do in this situation?

10. Case Study
Rebecca has told one or two coworkers that sometimes she has thought about hurting herself and that she has been having a hard time getting out of bed and getting through the day. The co-workers are now talking amongst each other about Rebecca’s comments. Out of concern, a coworker John tells Rebecca’s supervisor that he thinks that Rebecca seems depressed and has talked about hurting herself.

11. Questions
What steps can Rebecca’s supervisor take in response to John’s report about Rebecca?
What are some potential legal pitfalls that Rebecca’s supervisor should be aware of in responding to John’s report?
What should Rebecca’s supervisor do if he determines that John’s report is based on rumors only?

12. The Direct Threat Defense and Employer Obligations in the Context of Mental Health Disabilities

13. ADAAA - Direct Threat
Employers can screen out workers who pose a direct threat
Direct threat means “significant risk” to the health or safety of others that cannot be eliminated by reasonable accommodation
To evaluate if a person poses a direct threat:
Conduct an individualized assessment on how the risk of harm exhibited by the mental/physical condition impacts the employee’s current ability to safely perform the essential functions of the job
Assessment must be based on the most current medical knowledge and/or best available objective evidence indicating significant risk of harm (i.e., medical exam not required BUT good faith belief not enough)

14. Revisiting our case study: Is there objective or current medical evidence of direct threat?
Rebecca has been employed with Acme retail store for 5 years. Rebecca’s performance over the years has been average to above-average. She has not demonstrated any significant problems with regard to her attendance, performance, or behavior. Recently, however, Rebecca’s co-workers have noticed that Rebecca seems depressed and anti-social. She rarely speaks to her co-workers casually anymore and has stopped going to lunch with her closest colleagues. Her coworkers are worried and wondering whether something may be going on with Rebecca, but they can’t figure out what it is. Rebecca has demonstrated this behavior for about one month now.

15. Objective Behaviors vs. Subjective Beliefs
Objective/Medical Facts
Subjective Beliefs/Opinions
Rarely speaks to coworkers
Coworkers have noticed she seems depressed and anti-social
Has stopped going to lunch with colleagues
Coworkers think something may be going on but they don’t know what it is
Demonstrated behavior for one month
Direct threat?

16. Revisiting case study – Part 2: Is there objective or current medical evidence of direct threat?
Rebecca has told one or two coworkers that sometimes she has thought about hurting herself and that she has been having a hard time getting out of bed and getting through the day. The co-workers are now talking amongst each other about Rebecca’s comments. Out of concern, a coworker John tells Rebecca’s supervisor that he thinks that Rebecca seems depressed and has talked about hurting herself.

17. Objective Behaviors vs. Subjective Beliefs
Objective/Medical Facts
Subjective Beliefs/Opinions
Rebecca has told coworkers she has thought about hurting herself, has a hard time getting out of bed, and getting through the day
John reports that he thinks that Rebecca seems depressed
Direct threat?

18. EEOC Enforcement Guidance
When dealing with psychiatric disabilities, employers must identify the specific behavior that poses a direct threat.
In most circumstances, a person who has attempted suicide does not pose a direct threat at work, assuming there is objective facts/medical evidence demonstrating employee’s current ability to perform the job safely.
Individuals who have a history of violent behavior or have made threats of violence may pose a direct threat. For example, if an employer learns that a job applicant was fired for threatening co-workers in a previous job and has received no medical treatment since his termination, a refusal to hire the applicant may be valid.

19. Reminders and Takeaways from the Courts
“The ADA does not require employers to take unnecessary risks when dealing with a mentally or physically impaired employee in an inherently dangerous job.” (Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284 (10th Cir. 2000)
Employers need not rely on inconclusive or questionable opinions from health care providers recommending the employee be returned to work. (EEOC v. Amego, Inc., 110 F.3d 135 (1st 1997)
This case is a great example of an employer speaking/following up with the health care provider when the information provided is not clear or the employer still has doubts about the employee’s ability to perform the job.

20. Case Study continued...
Rebecca attempted to commit suicide at her home one morning. Following the suicide attempt, she was hospitalized, and she sought and received approval for a leave of absence from work. At the end of her leave of absence, her medical provider cleared her to return to work, indicating only that Rebecca would need time off once per week to attend therapy appointments. Rebecca’s supervisor is concerned for Rebecca. He decides to help Rebecca ease back into her position by re-assigning some of her job responsibilities to John in order to lighten Rebecca’s workload and reduce her stress level once she returns to work.

21. Questions
What are the risks that arise from the supervisor’s decision to try to help Rebecca by reducing her workload?
What would you advise the supervisor?
Should the manager ask Rebecca if she needs an accommodation for her condition?

22. Do you know what you would do?
Do You Have a Plan?
What if your employee attempts suicide at work...
What if you learn that one of your employees is a victim of domestic violence and the violence is now creeping into the workplace (i.e., stalking, harassment, other abuse)...
What if one of your employees is the target of harassment or stalking by another person (employee or not)...
Do you know what you would do?

23. Privacy Issues Conducting surveillance
Monitoring company information systems
Monitoring social media
Interviewing co-workers
Contacting next of kin
Contacting medical provider

24. What to Do if Potential Threat Arises?
Monitor the situation
Provide assistance to the target
Help target understand resources available
Do not recommend course of action
Do not go beyond workplace
Warn employees and others who may be direct or indirect targets
Take action where appropriate
Provide additional security
Consider restraining order on behalf of company, if applicable
Remove the threat

25. Practical Suggestions for Responding to Workplace Violence Issues Arising From Suicide or Domestic Violence

26. Practical Suggestions: Conducting Disciplinary Meetings
Plan – When, Where, Who, How
Off hours, secure environment, escape planning
Avoid mentioning targets, inform as necessary
Script the meeting
Pre-event Surveillance
Arrange Secured Escort
Consider Weapons Search
Post-event Checklist
Issue Advisories
Confirm Access Denied
Post-event Surveillance

27. Practical Suggestions: Forming a Threat Assessment Team
Core group of people who are notified and responsible for handling all incidents of workplace violence:
HR Manager
Safety/Security Rep
Operations Rep
Attorney
Additional people roll on/off team for specific incidents:
HR Consultant for affected department
Manager for affected department

28. Practical Suggestions: Responding to an Incident
Notify emergency services, if appropriate
And if it is, do this first!
Inform those within company with a need to know
Threat Assessment Team
Institutional chain of command
Call counsel at earliest opportunity
Consider enlisting outside resources
Take action

29. Practical Suggestions: Responding to an Incident, cont.
Consider public relations/release of information
Have plan for maintaining operations
Document everything
Provide support to affected employees
Psychological (EAP)
Financial
Leave

30. Other Considerations Have the appropriate policies in place
Workplace Violence
Weapons
Drug/Alcohol Use Policy
Domestic Violence Policy
Understand your resources
EAP
Other local assistance programs, especially for suicide and domestic violence
Local law enforcement
Consider a workplace violence hazard and security audit
Train your supervisors/managers