Last weekend the New York Times ran a big story detailing who knew what and when about the mental health, or lack thereof, of Navy Yard shooter Aaron Alexis. Alexis killed twelve people in a shooting rampage in September. About a month before the shootings, Alexis’s mother told his supervisors that he had a history of paranoid episodes and needed therapy. But according to an internal company investigation, his employer did nothing.
What could/should his employer have done? It’s a tricky area, as on the one hand, Alexis presumably would have been covered by the ADA and perhaps entitled to a reasonable accommodation. On the other hand, his paranoia posed a tremendous safety risk. Is the employer in such a scenario forced to sit between the proverbial rock and hard place? Thankfully, no.
The analysis should have been as follows: Assume Alexis was covered by the ADA. BUT, there was enough information to be concerned about the safety of Alexis and others. THUS, the question should have been whether he posed a “direct threat.”
Fortunately for employers, the direct threat analysis under the ADA provides an exemption to the duty to reasonably accommodate. If an employee poses a direct threat (to his or her own safety or the safety of others), the employer does not need to keep the employee for fear of violating the ADA. How can an employer ascertain whether an employee does, in fact, pose a direct threat? By looking at reasonable medical judgment, or by looking at the best available objective evidence. That means at least looking into the issue. Sending the employee for a medical examination (at the employer’s cost), or taking some affirmative steps to assess the threat. In the Navy Yard case, it appears the employer took none of these steps.
If you have an employee who might pose a danger to the workplace, please take it seriously and explore your options. Consider the direct threat analysis. Train your managers to spot these issues. And contact counsel or your favorite HR consultant.