By Jim Cline and Erica Shelley Nelson
Representing the Injured or Disabled Member
Part 22: Arbitration of Mental Health and the Direct Threat to the Workplace
This article is the 22nd in a multiple part series covering the rights your injured and disabled members have and how you, as a union or guild representative, can best assist them. Over the several weeks and continuing for the next several weeks, we’ll be publishing, in various segments, information on how state and federal laws protect your members who are hurt or otherwise unable to work. We’ll cover topics including disability discrimination law, the FMLA, job protection rights under the CBA, workers compensation, disability benefits, and the right to bring a civil lawsuit.
The topics we are covering are addressed in detail in our newest book: HELPING THE INJURED OR DISABLED MEMBER: A GUIDEBOOK FOR THE WASHINGTON LAW ENFORCEMENT AND FIRE UNION REPRESENTATIVE. It is also our intention over the course of the next year to travel through the state and provide training to public safety union and guild representatives on how best to enforce these rights. Expect to hear more on that in the months ahead.
The 22nd article in these newsletter series provides a discussion concerning arbitrations related to mental health issues where the employee may be a direct threat to the workplace. For more information, visit our Premium Website . On the website you’ll find an on line version of the Injured or Disabled Member’s Guidebook and other information on the laws covering your members.
Arbitrators have occasionally had to address the issue of employees whose mental health difficulties create a potential hazard in the workplace. Employers are under an obligation to reasonably accommodate an employee with a disability, but not if such accommodation would create a safety hazard.[76] Before an employer can discharge or discipline an employee with mental health problems, it must conduct some type of investigation into the reasons for the employee’s conduct.[77] As one leading arbitration treatise indicates:
Most arbitrators have been less willing to uphold disciplinary action for violation of shop rules where the employee’s conduct was caused by mental health problems that were treatable or in a state of remission, or where the employee had apparently recovered as a result of subsequent treatment.[78]
The treatise further indicates that:
There is a general consensus that when medical evidence indicates that a worker’s mental disability exposes that employee or others to serious risk of injury or harm, or, alternatively prevents that employee from performing his or her duties, dismissal may be justified.[79]
It then adds:
In determining whether an employee represents a direct threat to the health or safety of the employee or others, the following factors should be considered:
• The duration of the risk;
• The nature and severity of the potential harm;
• The likelihood that the potential harm will occur; and
• The imminence of the potential harm.
The determination of direct threat must rely on objective factual evidence and not on subjective perceptions, irrational fears, patronizing attitudes or stereotypes. Likewise, whether the employee poses a safety risk must be based on an individual evaluation, and not on generalizations about their medical conditions. [80]The determination must be based on the circumstances of the individual under consideration, and the evidence must be compelling and supported by expert opinion.[81] It is impermissible for an employer to simply assume that a mental or physical condition automatically makes an employee unfit for work.
Like the balancing test required when determining whether employers must accommodate disabilities, the ADA requires that employers conduct a similar balancing test when determining whether a disabled employee presents a significant safety hazard to warrant termination. [82]Therefore, employers are required to accommodate disabilities, but they need not create or prolong a safety hazard for their employees, including the one with the mental or physical condition. The employer must balance the interest of the disabled employee in continued employment with the interests of all parties that could potentially be affected by the safety risk posed by that disability, including the affected employee.
In an illustrative case, an employee was terminated because he had homicidal intentions towards many of his coworkers, which came to light during a review of his medical records. [83]The union argued that as the threats were not directed at anyone in particular, there was no real threat. But the arbitrator sided with the employer, stating that the employee appeared to be a “ticking time-bomb” and creates an undue risk to the district, as well as other employees. In considering the balancing of interests, the arbitrator, concluded “[t]he consequences are too grave and the probability of such death threats being carried out is simply too high.”
In another case, the employee had been fit for duty with medication, but when he went off his medication, he threatened and endangered co-workers. The arbitrator agreed that the employee would work safely on the medication. But because he had already caused a hazard, the damage had been done, and the arbitrator concluded that an impermissible hazard existed that the employer no longer had to accommodate.
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[76] Johnson Am. Corp., 114 LA 577 (D’Eletto, 2000).
[77] Bornstein & Gosline, supra, at § 23.09.
[78] Id.
[79] Id.
[80] See Elkouri & Elkouri, supra, n. 31.
[81] Id. (emphasis supplied).
[82] Elkouri & Elkouri, supra, n. 31.
[83] Anchorage School Dist., 119 LA 1313 (DiFalco, 2004).
