Like most people this time of year, I like to count my blessings for the things most important to me in life: my family, my health, and getting to do a job that I like while working with people that I like and respect. However, for a large percentage of our population, these times can be frustrating and agonizing over the people and things lost to us. That is why there is a common understanding that suicide attempts rise this time of year.
Let me address a couple of myths. First, according to Centers for Disease Control and Prevention:
CDC’s National Center for Health Statistics reports that the suicide rate is, in fact, the lowest in December. The rate peaks in the spring and the fall. This pattern has not changed in recent years. The holiday suicide myth supports misinformation about suicide that might ultimately hamper prevention efforts.
Suicide remains a major public health problem, one that occurs throughout the year. It is the 10th leading cause of death for all Americans. Each year, more than 36,000 people take their own lives. In addition, more than 374,000 are treated in emergency departments for self-inflicted injuries. [citations omitted].
The second myth is that individuals that make failed suicide attempts are unfit to return to work. Indeed, many employers discriminate and retaliate against employees that suffer from disabilities that lead to suicide attempts. Under the Americans with Disabilities Act (“ADA”), such treatment is unlawful. The EEOC’s enforcement handbook relative to psychiatric disabilities states, in relevant part:
Under the ADA, an employer may lawfully exclude an individual from employment for safety reasons only if the employer can show that employment of the individual would pose a “direct threat.” … Employers must apply the “direct threat” standard uniformly and may not use safety concerns to justify exclusion of persons with disabilities when persons without disabilities would not be excluded in similar circumstances. …
The EEOC’s ADA regulations explain that “direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” … A “significant” risk is a high, and not just a slightly increased, risk. … The determination that an individual poses a “direct threat” must be based on an individualized assessment of the individual’s present ability to safely perform the functions of the job, considering a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. …
With respect to the employment of individuals with psychiatric disabilities, the employer must identify the specific behavior that would pose a direct threat. An individual does not pose a “direct threat” simply by virtue of having a history of psychiatric disability or being treated for a psychiatric disability. (EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities at p. 219 ([23-1] at p. 17) (footnotes omitted).)
The EEOC’s enforcement guide also speaks directly to the issue of attempted suicide:
35. Does an individual who has attempted suicide pose a direct threat when s/he seeks to return to work?
No, in most circumstances. As with other questions of direct threat, an employer must base its determination on an individualized assessment of the person’s ability to safely perform job functions when s/he returns to work. Attempting suicide does not mean that an individual poses an imminent risk of harm to him/herself when s/he returns to work. In analyzing direct threat (including the likelihood and imminence of any potential harm), the employer must seek reasonable medical judgments relying on the most current medical knowledge and/or the best available factual evidence concerning the employee. (EEOC Enforcement Guide at Question 35, p. 220 ([23-1] at p. 18).)
This issue was recently addressed by a federal district court in Wolski v. City of Erie:
Title I of the ADA prohibits covered employers from discriminating against qualified individuals with disabilities because of their disabilities with regard to “terms, conditions, and privileges of employment” including, among other things, job application procedures and the hiring, advancement, or discharge of employees. See 42 U.S.C. § 12112(a). The Act defines a “qualified individual with a disability” as “an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” 42 U.S.C. § 12111(8). The term “disability” is defined as: (A) a physical or mental impairment that substantially limits one or more of the major life activities of an individual, (B) a record of such impairment, or (C) being regarded as having such impairment. See 42 U.S.C. § 12102(2). Here, Wolski claims that the City violated the provisions of the ADA by intentionally discharging her because of her perceived disability, by violating the provisions of 29 C.F.R. § 1630.2(r) pertaining to employees who pose a “direct threat” in the workplace, and/or by failing to offer her a reasonable accommodation.
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For purposes of § 12113(a), the term “qualification standards” may include a requirement that an individual not pose a “direct threat” to the health or safety of other individuals in the workplace. 42 U.S.C. at § 12113(b). See also 29 C.F.R. § 1630.15(b)(2). A “direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” Id. at § 1630.2(r). Where a perceived “direct threat” is invoked as a qualification standard, however, any determination that an individual poses a direct threat must be based on an “individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Id. Moreover, the regulations state that such an assessment “shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” Id. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm. Id.
For purposes of the “qualification standards” defense, it appears that the critical factor in determining whether future accommodation and/or an individualized assessment is required is whether the termination was premised upon past misconduct that violated a workplace standard or, rather, upon perceived safety or performance concerns going forward. Here, the City insists that the “individualized assessment” regulations pertaining to employees who pose a “direct threat” are inapplicable because Wolski was terminated solely on the basis of her past misconduct. However, this assertion merely begs the question whether in fact a jury would be required to find, as a matter of law, that Wolski’s termination was premised solely on her own past misconduct or whether, on the contrary, a jury would be justified in finding that her termination was at least partly motivated by the City’s generalized concerns relative to her perceived psychiatric disability. On this record at least, we cannot say that the record is so one-sided that a reasonable fact-finder would be precluded from finding that Wolski’s perceived disability was a motivating factor in the City’s decision to discharge her. Accordingly, the City’s motion for summary judgment as to the ADA claim will be denied.
In Wolski, the Court held that there was a question of fact and sent the issue to the jury. But each case is different and needs to be handled differently.
If you even think that your employment rights have been violated or that you might need an employment lawyer, then call the right attorney to schedule a free and confidential consultation at 866-797-6040. Spitz, The Employee’s Law Firm is dedicated to protecting employees’ rights and solving employment disputes.
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