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Predicting the Potential for Violence

A jury has found the termination of a suicidal firefighter who purposely set a fire in her father's home to be in violation of the Americans with Disabilities Act. The message to employers and HR, experts say, is to work with the appropriate professionals to make an "individualized assessment" of an employee's psychological well-being before deciding whether to cut ties.

Thursday, December 6, 2012
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As the case of Mary Wolski v. City of Erie shows employers, dealing with an employee the company deems a potential threat to workplace safety can be a no-win situation.

"On one hand, if you terminate the employee, you can get sued for discrimination," says Stephen Sheinfeld, partner and head of Winston & Strawn's labor and employment relations practice group in New York. "On the other hand, if you retain them and there's a violent episode on the job, you can be liable for the damage done."

In the case of Mary Wolski, the City of Erie terminated her employment after determining that she may endanger the safety of her fellow firefighters, and she subsequently sued. A Pennsylvania district court judge has denied the City's motion to dismiss the case, and a jury found the City had indeed discriminated against Wolski in letting her go, based on her documented issues with depression and anxiety.

Wolski had worked for the Erie fire department since 1997, eventually becoming a fire truck driver. She had "performed her duties satisfactorily over the years," court documents indicate. In 2005, however, Wolski's mother fell ill, and she took extended periods of approved leave in order to care for her mother until her death in December of that year.

Her mother's passing caused Wolski "significant grief," according to court records. She took extended, approved leaves throughout 2006, during which time her supervisors kept in contact -- determining if she was receiving proper treatment for her depression and anxiety, even visiting her at home to discuss a potential return-to-work date.

Wolski attempted suicide after one such visit, traveling to her hospitalized father's vacant home, disconnecting smoke alarms and disassembling the furnace flue pipe in an attempt to fill the house with carbon monoxide, before taking an overdose of pills.

When these attempts failed, Wolski ignited some clothing in the house's bathtub, with the intention of "creat[ing] a smoky fire that would result in her death through carbon monoxide poisoning," according to court records, which also indicate Wolski inflicted several cuts to her own neck with a buck knife after lighting the fire. Wolski was ultimately discovered by family members, and flown to Pittsburgh for emergency treatment.

The City of Erie subsequently launched an investigation, determining the fire had been intentionally set. While charges were never filed, the department eventually let Wolski go, claiming she may be a danger to her fellow firefighters if she were to return to work. In her lawsuit, Wolski alleged her termination violated the ADA.

The key to the court's decision was the department's failure to go through an "individualized assessment" process before terminating Wolski. Rather, the court found the department based its decision to fire Wolski on behavior that may have been precipitated by her disability. 

Having to evaluate employees' potential threat to themselves and their co-workers puts HR in a very delicate position, says Sheinfeld.  

"HR has to be very careful here, for the obvious reasons -- confidentiality, employee privacy, etc. But it's tricky. If you're dealing with an employee's conduct and the potential for violence, you don't want to be wrong," he says. "Employers are presented with a situation where, if they're going to be wrong, they would rather be sued for wrongful termination than wrongful death."

From a strictly legal standpoint, what courts are concerned with in a wrongful termination case such as this one "is whether the employer is making its decision after performing that individualized assessment," says Sheinfeld.

Typically, the evaluation process "means getting medical input, especially when you're dealing with someone with a record of a mental issue," he continues. "In this case it was depression. It's not for the layperson to discern the workings of the [employee's] mind. So you take input you've attained from the employee and the employee's healthcare provider, and get proper releases to access otherwise protected medical information."

The process should also include a conversation, and possibly more, with the employee to determine whether the impairment substantially limits his or her ability to perform essential functions of the job with or without reasonable accommodation, says Michelle Anderson, employment law attorney in the New Orleans office of Fisher & Phillips.

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"From the facts cited in the Wolski opinion, it appears this [conversation] may not have occurred," she says.

"If an employee is requesting specific accommodations, ask them to put this in writing," continues Anderson. "HR leaders should document all conversations regarding the assessment process and meetings with the employee. They may also consider having a witness present for any discussions with the employee. The process can be formalized by preparing correspondence to the employee with requests for documentations from the treating care provider, specific accommodation sought and deadlines for submission of documents or to otherwise respond to requests for information."

When the time comes to determine the employee's fate with the organization, HR and business leaders should emphasize the business reasons behind its decision should it choose to terminate the professional relationship, says James Matthews, a Philadelphia-based partner and co-chair of the labor and employment department with Fox Rothschild.

"It's usually best practice to make only the decision that needs to be made for business reasons, only when it needs to be made, and based upon objective facts and qualified, informed judgments specific to the employee," says Matthews. "If an employer makes its decision that way, it will almost always make a better business decision, and the discrimination or other legal issues will generally take care of themselves."

HR's responsibility, he says, is to facilitate that process -- in conjunction with legal counsel, if the situation warrants -- by "helping the business decision makers to ask the right questions, acquire the right information and consider all available courses of action.

"Here, HR not only has a role in standing at the fork in the decision-making road and nudging the process down the right [path], but also in making sure the professionals have all the facts, so the judgment takes into account the workplace realities and the specific concerns of management," says Matthews.

Ultimately, HR must serve as an aid to management in reaching an employment decision that considers the employee's specific circumstances, he says.

"That can range from a gentle suggestion to a smack upside the head, but the point in the end is to help the decision makers make the best decision they can. It shouldn't be HR's job -- any more than it should be legal counsel's -- to tell management what it can't do. Rather [HR's role should be] to keep the business decision-making process on the rails."

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