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Employers face tough challenges keeping the workplace safe

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The on-air shooting of a TV reporter and cameraman in Roanoke, West Virginia, last month provides an extreme example of a challenge facing many employers: how to protect employees from potentially violent unruly workers while also ensuring that troubled workers are afforded protections due under the Americans with Disabilities Act.

Employers face tough choices as they balance their obligations to all workers and there often are no easy answers, experts say.

Reporter Alison Parker, 24, and cameraman Adam Ward, 27, were shot by Vester Flanagan, 41, a former employee of the TV station, CBS affiliate WDBJ. He later shot himself as police pursued him.

According to news reports, Mr. Flanagan was fired in February 2013 because of documented performance and newsroom behavior issues, and the station had to call police to escort him from the building.

The more than two years since he left the station is expected to cushion the station from charges of fault in the killings, observers say.

A related issue is the standard practice of former employers providing only limited information when prospective employers check references (see sidebar).

Under a carve out of the ADA, employees who present a direct threat to themselves or others because of their mental condition do not fall under the law's protection, said Gregg M. Lemley, a shareholder at law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C. in St. Louis.

“But when does an employee constitute an imminent threat of harm” and “how on earth are we supposed to know?” asked Deirdre Kamber Todd, of the Allentown, Pennsylvania-based Kamber Law Group. “That's really a major challenge.”

The conundrum employers face is determining the point at which the “disabled” person loses the ADA's protection “because their behavior constitutes a threat to their own safety or the safety of other employees” said Mark A. Lies II, partner with law firm Seyfarth Shaw L.L.P. in Chicago.

“It's a very tough call, which is why when I get into those situations we try to avoid stereotypes and we try to look at all the facts, because what is said is important,” as well as the accompanying physical behavior, such as a clenched fist, a finger across the throat or a hand formed in the shape of a gun, said Mr. Lies.

“If you listen carefully and watch carefully, you'll see signs that an employee is saying or doing things that are threatening,” said James J. McDonald Jr., regional managing partner with law firm Fisher & Phillips L.L.P. in Irvine, California.

Experts suggest employers carefully document remarks, emails and other indications of a possibly troubled employee to protect themselves from charges of violating the ADA.

“The employer has to go past complaints” that a person makes someone nervous or “looked at me funny” and provide facts to support that he or she is a direct threat to workers' health and safety, said Susan W. Kline, a partner with law firm Faegre Baker Daniels L.L.P. in Indianapolis.

If employers “are making assumptions about a mental health condition, and then act on those assumptions in a negative way, that can get them in trouble under the ADA. But if what they're observing is actual misconduct,” they can take action against an individual, said Elizabeth Bille, vice president and associate general counsel at the Alexandria, Virginia-based Society for Human Resource Management.

Mr. McDonald said in ADA cases the courts “are generally indulgent toward employees with disabilities, but most courts draw the line where an employee becomes violent, whether the violence is an outgrowth of a disability, or not, and so I think employers should not be as afraid of a lawsuit as they should be concerned about the safety of their employees and their clients and their customers.”

Employers should establish conduct standards for everyone “regardless of whether that person has a mental health issue or the person is just having a bad day,” said James S. Urban, a partner with Jones Day in Pittsburgh. “The EEOC would be fine with that as long as it's a uniformly enforced policy.”

Actions employers could take include requiring an employee to take a medical leave of absence until he's cleared to return by a mental health professional, said Robin E. Shea, a partner at law firm Constangy, Brooks, Smith & Prophete L.L.P. in Winston-Salem, North Carolina. Employers also can refer the worker to the firm's employee assistance plan, if available, experts say.

But that still does not address situations that lack concrete evidence, just an uneasy feeling about an employee. “Once the employee crosses the line into misconduct, the employer is free to act on that,” said Richard D. Tuschman, a partner with Goodz & Tuschman p.l.l.c. in Plantation, Florida.

“The difficulty lies where an employee is suspected of having a mental disability and the employer's concerned that the employee may strike out and engage in violence, but the employee hasn't done anything yet, hasn't made any direct threats,” Mr. Tuschman said. “I don't know if there's an easy answer.”