Employers walk a very fine line when it comes to their employees’ mental health, experts say.
Employers can’t reject an applicant or fire someone who has a mental health condition. Struggling employees can ask for help with mental illness at work, but they have a right to privacy, under federal and state law. Everything changes, however, if a worker poses a direct threat to themselves or others.
Police said Friday that the 26-year-old woman who fatally shot three coworkers and injured three others Thursday at a Rite Aid distribution center near Aberdeen had a history of mental illness. Snochia Moseley had become increasingly agitated in the weeks before she opened fire on her coworkers and killed herself, police said.
A rash of workplace shootings, including a spate within 24 hours in Aberdeen, at a software company in Middletown, Wisc., and at a municipal building in Masontown, Pa., have brought to the forefront questions about how to balance employer’s obligations to protect workers with the rights of those workers.
“It’s a really difficult area… where you have on the one hand the rights of those with disabilities not to be discriminated against, and on the other hand very often legitimate safety concerns that employers may have,” said Robert Niccolini, a labor and employment attorney and shareholder with Ogletree Deakins who represents employers in Maryland and Washington. “The concern about violence in the workplace is certainly a very legitimate concern and on the minds of more and more employers as we have more incidents.”
Niccolini said he urges clients to focus on behavior and performance, not disability, and to set a zero tolerance policy for threats or acts of aggression.
“You can’t ask someone: ‘Do you suffer from mental illness?’ That’s illegal,” he said. “We have an obligation to create a safe work environment, but at the same time, we can’t turn that into a witch hunt involving those with mental disabilities.”
Rite Aid did not respond to a request for comment Friday.
About one in five U.S. adults, or nearly 44 million people, experience mental illness in any given year, according to the National Alliance on Mental Illness. Most people with serious mental illnesses are never violent, experts say.
Before someone is hired, employers generally are prohibited by law from asking medical questions, including questions about mental health.
They can ask, however, if an employee or potential employee asks for reasonable accommodations. They also can ask after making an offer but before the job starts, as long as all applicants are asked the same question. That’s often done to screen workers for public safety jobs or security clearances.
“You can’t single somebody out,” said Edmund O’Meally, an attorney in the labor, employment and education practice at Pessin Katz Law in Towson. “You can’t say, ‘This guy appears a little odd. Maybe I’m going to send him for a screening.’”
Employers also can raise medical questions if it becomes evident someone can’t perform their job, or poses a safety risk.
“For them to take action, it has to revolve around some sort of behavior or performance-related issue in the workplace,” said Edward Yost, manager of employee relations and development for the Society of Human Resource Management in Alexandria. “If someone is agitated at work and directing it a customers or other workers, an employer can step in.”
O’Meally said employers have wondered what to do when workers are clearly struggling but fail to ask for help — often after having disclosed a condition.
“There’s no harm in sitting down with the employee and saying, ‘How can we help you do your job better? How can we provide accommodations to to assist you?’” he said.
In one case where an employee verbally threatened co-workers, the employer sent the worker to a “threat assessment” screening through the company’s employee assistance provider and required him to take leave, O’Meally said.
“The end result was there were some re-assignment and some accommodations… a shift change and a location change,” he said. “The best thing is to be proactive, to make it clear to the employee or potential employee that the employer is a collaborator in accommodating a person with disabilities, rather than punitive.”
All the publicity about workplace violence has begun to spark more conversation in the the workplace about long-stigmatized topics, Yost believes.
“You’ve seen an uptick in people having more open conversations in the workplace about mental health benefits,” he said, “and encouraging people to seek the care that they need.”