FFD-Violence Screens - A critical tool in establishing direct threat as cause to terminate
A large concern for HR professionals and legal counsel is managing an angry disgruntled employee who has communicated a direct threat to the company, yet who also qualifies for protections under the Americans with Disabilities Act (ADA).
Do nothing, and the employee may act on their violent threat, presenting a host of problems – human loss and suffering, cessation of business operations, structural and logistical costs to resume operations, long-term legal exposure to wrongful death litigation, etc.
Quickly move to terminate without a proper assessment, and the employee may take legal action alleging discrimination under ADA, which presents it’s on set of headaches – entrenched, costly, and arduous legal battles, reputational damage, increased oversight, etc.
Fitness for Duty Evaluations-with Violence Screen (FFD-VS) can be a critical tool in helping employers navigate these decisions and increase their defensibility when applying the ADA’s direct threat defense.
For years the ADA has had a direct threat affirmative defense, but historically it has been considered difficult to demonstrate in court. The direct threat defense exempts employers who refuse to hire or terminate an existing employee if it can be demonstrated that the person poses a direct threat. “Direct threat” is defined as “a significant risk of substantial harm to the health or safety of that employee or others, which cannot be eliminated or reduced by a reasonable accommodation.”
In determining that threshold, HR and attorneys who counsel them must carefully weigh several key considerations:
• Duration – How long has the risk been present, or is expected to be present?
• Impact – What is the severity, nature, and impact of the risk in causing potential harm?
• Likelihood – How probable is the risk in occurring and causing potential harm?
• Imminent Risk – How urgent and immediate is the risk?
Generally speaking, as each of these factors increases in severity, the threshold for triggering the direct threat defense appears more supported. I say “appears more supported” because, as I stated earlier, these can be tricky cases to defend in court as it can be difficult to clearly demonstrate duration, impact, likelihood, and imminent risk in many cases.
Fortunately, a recent federal trial court case from June of last year (Spencer-Martin v ExxonMobil Corp, M.D. La., No. 16-789, June 15, 2018) shows how an employer can defend a direct threat disqualification, even when receiving conflicting medical opinions. In Spencer, an employee (plaintiff) at Exxon with a history of having at least one seizure while working her safety-sensitive job as a control-room operator, was evaluated by her treating neurologist and released back to work without restrictions. Exxon had concerns about that opinion, and Exxon’s Occ-Med staff physician conducted a thorough individualized assessment that included the following key factors:
1. Direct assessment of the employee’s functional abilities.
2. Utilized semi-structured and standardized assessment protocols that were detailed, behaviorally-anchored and fact-specific to the risk issue in question.
3. Conducted collateral interviews with the employee’s treating specialist.
4. Provided an unbiased and impartial medical opinion supported by the medical and behavioral facts of the case.
While Spencer addressed a physical medicine issue (seizures), the court’s reasoning for ruling for Exxon clearly established high-level criteria that apply in the behavioral-health and threat assessment space.
A Fitness for Duty – Violence Screen (FFD-VS) addresses the clinical and legal factors that proved successful for Exxon’s defense in the Spencer case. An FFD-VS provides all the benefits of a traditional FFD evaluation, with the added benefit of specifically addressing violence risk. The FFD-VS is a structured, behavioral health assessment of an individual’s cognitive, emotional, and psychological functioning within the context of their job requirements, but with an added focus on assessing risk factors for both reactive and targeted violence. It includes a comprehensive clinical interview, review of well-known risk factors for violence, psychological testing, and analysis of how the present risk factors impact an overall risk profile for that employee. It is specifically designed for those situations when an employer has safety concerns about an employee related to anger, hostility, aggression, and direct or indirect threats. As such, it provides crucial information allowing HR to make well-informed employment decisions through a structured process that is practical and legally defensible.
The decision to terminate an employee based on a potential threat posed to the workplace is a heavy and consequential decision and should not be conducted lightly. Equally important is ensuring that employers respect the rights of employees under ADA. Finding the balance between the two can be difficult. Thus, it is critical to use standardized, structured assessment protocols, and the proper specialists to ensure that employment-based decisions are fully informed by an expert, behaviorally-anchored and fact-specific assessment that directly addresses the risk issue in question.