By William Wiley, May 17, 2017

Last week, senior team members of our training group presented a webinar on the psychological aspects of employees with mental conditions and related supervisory obligations to accommodate a disability. It was one of the most widely received programs we’ve presented this year, so you can expect to see it again soon in some form, in case you missed it. When an employee with a mental condition poses a threat in the workplace, the information we provide in seminars like this can save your life.

One concern in situations like these from the employment law aspect is this:

What should a supervisor do when confronted with an employee who appears to be a danger to himself?

A classic example is the employee who says to his supervisor, “I’m so upset about how things are going around here that I’m thinking about committing suicide.” According to USA Today, there is a suicide every 13 minutes in the United States. Applying general suicide statistics to the federal workforce without tweaking for the specific demographic, we can expect about 850 federal employees to commit suicide this year. So when an employee says to her supervisor, “I’m thinking about killing myself,” there’s a real possibility she will.

Deb Hopkins and Shana Palmieri did a terrific job last week of explaining the supervisor’s options, given the psychological and reasonable accommodations aspects of a situation like this. We have an obligation to help the employee get help, while simultaneously recognizing the employee’s rights to reasonable accommodation and medical records privacy. But what do you do as a practical matter for the rest of the work day? Do you say something like, “Geez, Joe, I’m sorry you’re feeling that way. Maybe your mood will get better if you get back to your desk and work on the XYZ report that I need by the end of the day?”

I’m guessing not.

So, what do you do? Well, of the options available to you, the easiest one is to tell the employee to take the rest of the day off, to get some help and to perhaps relieve any immediate stressors. You can invite the employee to request sick or annual leave, or you can place the employee on administrative leave (if you’ve been to FELTG’s Absence and Medical Issues Week seminar, you know that you cannot place the employee on sick or annual leave without his permission). But what if the employee refuses to leave? Sadly, a number of people with mental issues do not realize that they have a psychological problem.

If you are familiar with our training programs here at FELTG, then you probably are aware that we claim to always know where the bottom line is legally when it comes to workplace dilemmas. For many years, the legal bottom-line in cases like this was not good. But now, thanks to the recent passage of the Administrative Leave Act of 2016, the answer is much better. Here’s what you do:

  1. If you can conclude that it is more likely than not that the employee is a danger to herself or to others in the workplace, you can immediately tell the employee that she is to leave the workplace and not return until she can produce medical evidence that she can perform her job safely.
    • Tell her that you will carry her in a regular pay status for 30 days to give her a chance to produce the evidence.
    • Also tell her that if she does not produce the evidence in 30 days, you will place her in a non-pay status until she does.
  2. For all you legal technicians out there, here’s what you’re doing as far as the law goes:
    • Proposing the employee’s Indefinite Suspension, see Gonzalez v. DHS, 2010 MSPB 132.
    • Placing the employee on Notice Leave, so that she gets paid during the notice period.
    • Giving the employee 30 days to respond to the proposal notice, 5 CFR 752.404(b)(1).
    • Implementing the Indefinite Suspension so that the individual is continued as an employee, but without pay until she produces medical evidence she can perform safely.

Once you initiate this approach, here are the possible outcomes and your response to each:

  1. The employee produces medical evidence he can do his job safely: You restore him to his position. It may have cost you up to 22 days of salary, but you may have saved a life. If you don’t think this a fair trade off, we don’t like you. Stop reading our newsletter.
  2. The employee produces medical evidence that he cannot do his job safely: You remove him for Medical Inability to Perform based on that evidence.
  3. The employee never responds: Six weeks after the proposed suspension, send the employee a Cook letter, explaining that if he does not produce evidence that he can do his job, you will propose his removal. Give him two more weeks. If nothing, then propose his removal based on Excessive Absence. If you don’t know the details of what all of this Cook-ing is about, you need to come to our next Absence, Leave Abuse and Medical Issues Week seminar, September 25-29, in Washington, DC.

We joke around a lot here at FELTG, as sometimes that’s the only way to get through the day. However, with this one we are deadly serious. When you have a dangerous employee in the workplace – dangerous to himself or to others – you need to be prepared to move quickly and with efficiency to do something about it. You owe it to the employee, to the coworkers and to yourself to know what to do. Wiley@FELTG.com

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