No Reasonable Accommodation After Threats to Kill Boss, Coworkers

The Alaska Supreme Court has upheld the dismissal of a public works employee who made statements that other employees in his workplace  interpreted as threats.

Plaintiff Tom D. Nicolos claimed his statements did not constitute threats or  misconduct under the personnel rules of the North Slope Borough Department of Public Works but were a cry for help due to a mental health crisis.

Nicolos allegedly told his boss he was “not in a good place” and was having homicidal thoughts. He then allegedly told a counselor that he had a “premeditated plan to use firearms to harm or kill people at his workplace.” The counselor notified Nicolos’ boss.

Nicolos said his discharge violated the Americans with Disabilities Act (ADA).

The Alaska Supreme Court recently upheld Nicolos’ dismissal, ruling  that a threat need not be intentional to constitute violence in the workplace. Alaska’s high court  said an employee can be punished for threatening statements or behavior “so long as it could be interpreted by a reasonable person as conveying intent to cause physical harm” Moreover, the Court said the ADA’s protection does not extend to an employee who is terminated because he cannot “perform the essential functions[his] position … (with or without reasonable accommodations.” The Court said it is an essential function of a job to refrain from making others in the workplace feel threatened for their own safety.

WOULD A REASONABLE PERSON PERCEIVE THE COMMENT AS THREATENING?

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OSHA Adopts Workplace Anti-Bullying Policy

 

The Occupational Safety and Health Administration has adopted a safety program for its own workers that includes a workplace anti-bully policy.

The policy is contained in a 278-page document, the OSHA Field Health and Safety Manual, which was released on May 23, 2011. The manual outlines safety practices for OSHA’s field offices. It was drafted in cooperation with the National Council of Field Labor Locals, a union that represents OSHA workers.

OSHA’s workplace bullying policy is significant because the General Duty Clause of the Occupational Safety and Health Act of 1970 requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees … .” However, OSHA has not enforced that provision with respect to workplace bullying, despite overwhelming research that workplace bullying may cause severe damages to a target’s mental and physical health.

The stated purpose of the workplace bullying policy, contained in the manual’s “Violence in the Workplace” chapter, is: ”To provide a workplace that is free from violence, harassment, intimidation, and other disruptive behavior.”

The manual defines “intimidating behavior” as:

“Threats or other conduct that in any way create a hostile environment, impair Agency operations, or frighten, alarm or inhibit others. Verbal intimidation may include making false statements that are malicious, disparaging, derogatory, disrespectful, abusive, or rude.”

 And, “workplace violence” is defined as:

“An action, whether verbal, written, or physical aggression, that is intended to control, cause, or is capable of causing injury to oneself or other, emotional harm, or damage to property.”.

 All OSHA employees are required to “treat all other employees, as well as customers, with dignity and respect. Management will provide a working environment as safe as possible by having preventative measures in place and by dealing immediately with threatening or potentially violent situations. No employee will engage in threats, violent outbursts, intimidations, bullying harassment, or other abusive or disruptive behaviors.”

The manual states that the Assistant Regional Administrator/Director for Administrative Programs or equivalent unit will:

1. Disseminate the workplace violence policies and procedures to all employees;

2. Provide annual training on this policy and U.S. Department of Labor workplace violence program for responsible OSHA Manager(s); and

3. Conduct an investigation and complete a Workplace Violence Incident Report for all incidents reported. The report will be submitted to the Regional Administrator within 24 hours of completion.

Congress created the OSHA  to ensure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance. OSHA is part of the United States Department of Labor.