Recently, we have seen an unusual spike in client situations involving legal claims associated with discipline or discharge of employees who engage in threatening or disruptive behavior in the workplace. When disciplined for such behavior, employees typically retain legal counsel who then threaten the employer with claims based on the employee’s alleged disability. In some cases, the employee alleges that a mental disability caused the behavior, and in others the employee claims that their actions were the result of side effects or withdrawal from medication used to treat the disabling medical condition.
Case law and regulations issued under the Americans with Disabilities Act make clear that employers do not have to excuse or ignore significant violations of their conduct policies even if such behavior is caused by an underlying disability. It would not be a reasonable accommodation, for example, to tolerate an employee’s threats of violence against coworkers.
However, the ADA may require employers to implement accommodations needed to prevent those outbursts from occurring in the first place. If the employee provides advance notice of potential behavioral issues associated with a medical condition, the employer should work with the employee to determine if there are measures that can be taken to avoid such behavior. This could include allowing remote work during particularly stressful periods or permitting short breaks during the workday for an employee to meditate.
If the employee continues to display aggressive or disruptive behavior despite these accommodations, the employer does not have to ignore or excuse these occurrences. The fact that the employee provided advance notice of the potential for such behavior does not provide him or her with carte blanche to violate the employer’s conduct policy. If the employee does not disclose a potential medical issue prior to receiving discipline for behavioral misconduct, the employer is never required to retroactively accommodate policy violations.
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