Threatening Suicide
BillG
12 Posts
We have an employee that has been with us for roughly three months that is going through a very mean spirited divorce -- and has some other personal problems as well. The EE works in a safety sensitive position -- working a critical position in the aircraft maintenance field.
During the last couple of days, he has openly talked about committing suicide -- a lot -- not just an idle comment here and there. While we have had no indiciation that he is not performing all the critical aspects of his job, we have temporarily removed him from his normal duties due to concern for the safety of those that might fly on the planes he inspects. We have referred the man to our EAP program -- and he appeared very appreciative of the reference.
My question is two part:
1. Can we require him to see a mental health professional and, if so, what are the ADA consequences of doing so?
2. If we run out of work for him to do outside of his normal duties -- work where a mistake or failure to focus on his part will not have safety consequences to others -- do we have to put him back to work on his regular duties even though we are unsure of his abilities to focus due to his personal problems and apparent mental state? (I guess I'm really asking -- Can we discharge him if we've exhausted the less critical work and his mental state continues to give us concern as to his ability to safely perform his primary job?
BillG
During the last couple of days, he has openly talked about committing suicide -- a lot -- not just an idle comment here and there. While we have had no indiciation that he is not performing all the critical aspects of his job, we have temporarily removed him from his normal duties due to concern for the safety of those that might fly on the planes he inspects. We have referred the man to our EAP program -- and he appeared very appreciative of the reference.
My question is two part:
1. Can we require him to see a mental health professional and, if so, what are the ADA consequences of doing so?
2. If we run out of work for him to do outside of his normal duties -- work where a mistake or failure to focus on his part will not have safety consequences to others -- do we have to put him back to work on his regular duties even though we are unsure of his abilities to focus due to his personal problems and apparent mental state? (I guess I'm really asking -- Can we discharge him if we've exhausted the less critical work and his mental state continues to give us concern as to his ability to safely perform his primary job?
BillG
Comments
Once you have mandated he goes, talk to your EAP provider (after ensuring the employee has signed a release) to see what, if any, additional treatment he may need as well as whether your EAP provider feels this person is mentally okay to perform their job.
Just a thought!
Fristly, I agree with Linda S. Make sure that the employee is going to EAP. Although, if he isn't there isn't that much you cna do in that regard.
An EAP is most is suppose to be separate from the employer's decision making and therefore will most likely keep confiential from the emplyer anything that would be medical in nautre. So, don't expect to get too much information on the emplyee's ability to perorm the job without being an immediate threat or risk to himself or others. On the other hand, in some states, such as in California, a professional clinician in the mental health field has an affirmative obligation to inform others who may be at reasonable risk from the client who the clinician is treating.
Regarding what you can do to determine if the employee is an imminent threat to himself or others because he talked about suicide given his apparent personal difficulties, you do have some possibilities.
The Americans With Disabilities Act does permit an employer to seek a medical (this includes psychiatric or psychological) evaluation to determine if the emplyee poses a direct threat to himself or other on the job. Such an examination has to be job related and consistent with business necessity (to use the EEOC's criteria). I will assume for the purposes of this post that when the employee was discussing suicide" he was not joking around. This would be done either by an appropriate contracted medical practitioner or by an "in-house" medical who has a "security wall" around the employee's medical information other than the finding whether the employee poses a direct threat or not.
Under EEOC guidance related to ADA and empllyees who are thought to pose a direct threat, an employer may lawfully exclude an individual from employment for safety reasons only if the employer can show that employment of the individual would pose a "direct threat." Employers must apply the "direct threat" standard uniformly and may not use safety concerns to justify exclusion of persons with disabilities when persons without disabilities would not be excluded in similar circumstances.
The EEOC's regulations provide that "direct threat" is "a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation." A "significant" risk is a high, and not just a slightly increased, risk. The determination that an individual poses a "direct threat" must be based on an individualized assessment of the individual's present ability to safely perform the functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. An individual does not pose a "direct threat" simply by virtue of having a history of psychiatric disability or being treated for a psychiatric disability.
So, depending on how serious or definitive the employee was in making statements about suicide, given his responsibilities in aircraft maintenance, you may have a basis for ordering a psychiatric or psychological evaluation. Last year, the US Supreme Court upheld EEOC's guidance that permittted employers to require evaluations where the employee is reasonably suspected to posed a direct threat to him or herself (as compared to others) even though that was not a condition explicit in ADA itself.
You may want to take a look at some of the EEOC Guidances on ADA and medical inquiries at the EEOC website.
We referred the troubled individual to our EAP with what appears to be great success. A few days after the referral, his co-workers noticed a dramatic improvement in his attitude and outlook. He openly thanked his supervisor for referring him to EAP and indicated they had helped him greatly. We also got a call from a close relative of the man, also thanking us for referring him to EAP and complimenting us for having such a program.
We'll continue to keep an eye on the man for a while - to make sure the change is real and continues to be positive. But for now, it looks like he's out of the woods. He's certainly performing well at work and appears to have come to grips with his personal problems.
Thanks to those that responsed.
BillG
BillG