What should an employer do when one of its employees alarms co-workers with threats of violence? And what can the employer do if the employee suffers from a disability that may explain why he made the threat? The Alaska Supreme Court, in a decision released on July 13, addressed these issues. Its unanimous decision provides some guidance to employers faced with threats of workplace violence by an employee with mental health problems.
In Nicolos v. North Slope Borough, Case No. 7257 S-16428, the Court upheld termination of an employee whose threats of violence and homicidal ideation alarmed co-workers even though (1) the employee did not engage in any actual physical threats; (2) the employee had a mental disability; and (3) knowledge of the disability arose from counseling sought by the employee.
The Court’s decision provides several significant takeaways for employers. First, the employer proved it took the threats seriously, and did not use them as a pretext to terminate a disfavored employee. The employer sought a protective order against the employee and took security measures that included installing protective glass and security cameras, and employing a security guard.
Second, the employer’s personnel policies were broad, prohibiting not just “threatening or intimidating behavior,” but also “any oral or written expression or gesture that could be interpreted by a reasonable person as conveying intent to cause physical harm to persons or property.” Co-workers reasonably interpreted the employee’s statements as conveying an intent to cause physical harm and were frightened.
Third, the Court weighed the employee’s admirable action to seek counseling against the employer’s legitimate desire to maintain a workplace free of violence and threats of violence. The Court did not substitute its judgment for the employer’s judgment in adopting policies prohibiting “threats of violence” that reasonably put co-workers in fear of physical harm.
Lastly, although the employee had a disability and his threatening statements arose from it, the court found no illegal disability discrimination under either federal or Alaska law. First, the employer was not aware of the disability until after the incidents occurred because the employee had not informed the employer or sought reasonable accommodation. Second, the Court determined the employee was not fired because of his disability, but rather because he was not able to perform an essential function of his job — “handl[ing] stressful situations without making others in the workplace feel threatened for their own safety.” Thus the employee was properly terminated because he could not perform an essential job function rather than due to his disability.
While this decision provides guidance, employers should carefully consider options if faced with similar situations. In some circumstances, extended leave and medical treatment or transfer to a different work position or location may be a better option than the risks and costs of protracted litigation. Employers should work closely with qualified HR and medical professionals and legal counsel when faced with workplace violence threats that may involve employees with mental health issues.