Violence in the Workplace: OSHA and ADA Create a Catch-22 for Employers

Cogs Turning in SyncHere in the United States, OSHA holds employers legally responsible for providing a safe and healthful workplace.  At the same time, under the Americans with Disabilities Act (ADA), emotional and mental illnesses are protected disabilities. The act prohibits employers from discriminating against individuals who suffer from a mental illness, including those psychiatric disorders which may trigger dangerous behaviors. It also  makes it illegal for employers to ask job applicants or existing employees if they suffer from  a mental or emotional illness.

In her article “Defuse Workplace Violence” (HR Magazine, November 2013), Barbara Holey suggests one solution to this Catch-22 dilemma.  If an employer has good reason to suspect that an employee poses a potential danger in the workplace, he can order a fitness-for-duty evaluation (FFD).

According to Psychiatrist Stephen Raffle, Independent Fitness for Duty Evaluations may be conducted “at the employer’s discretion and are permitted because of the employer’s need to maintain a safe workplace.” The ADA allows such an evaluation provided that the employer can show that it is job-related and is “consistent with business necessity.”  Raffle recommends that employers seek out a psychiatrist who is familiar with the employee’s rights under the Americans with Disabilities Act.

Of course, not all mentally ill people are dangerous. Far from it. And often times it’s not the employee who is obviously grappling with some mental or emotional problem, but the calm-on-the-outside, seemingly stable employee (or ex-employee) who loses it one day and attacks his boss or co-workers. The fitness-for-duty evaluation should never be treated lightly nor ordered without good cause.  But if you are legitimately concerned that an employee may pose a real danger to your workplace, it may be your best way out of the OSHA-ADA Catch-22.

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Foot-in-Mouth-Disease – The Benefits and Pitfalls of Maintaining a Presence on the Web

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Shortly before boarding her flight out of London’s Heathrow Airport,  IAC Director of Corporate Communications  Justine Sacco tweeted, “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!”

By the time Ms. Sacco landed  in Cape Town,  her words had gone viral, sparking thousands of  tweets worldwide.  Or should I say thousands of angry buzzes? It seems  Ms. Sacco had become the Girl Who’d Kicked a Global Hornets’ Nest, as well as the poster face for over-privileged-white insensitivity.   The next day, IAC announced that Justine Sacco was no longer employed by them.

While I have no sympathy for Ms. Sacco, her story reminds me of the delicate balancing act we must all perform in today’s social media engulfed world.   An ever increasing number of employers now Google job applicants as part of their initial screening process. If you don’t have a ‘presence’ on the web, many prospective employers will not consider you, based on the assumption that you are not technologically savvy and that you lack twenty-first century social networking skills.

However, it’s not simply enough for just your name, photo, and a few dull facts to show up on LinkedIn or Facebook. A lot of employers are specifically seeking out employees who are a cultural fit, meaning they are looking at your hobbies, the type of volunteer work you do, the groups you belong, and the social and political comments you make to determine whether you are a good match for their organization. Career-minded job applicants are learning they have to brand themselves through their online image in order to sell themselves to employers.

At the same time, the more we reveal about ourselves  online, the greater the risk that we will commit some faux pas. It may not go viral as Ms. Sacco’s did, but it may linger on the web for years, readily accessible to anyone who Googles our name.  In fact, some employers are actually contracting firms to run Social Media Background Checks.

This, in turn, has spawned yet another type of business. Repplers,for example, now offers  a ” a tool for scrubbing your social networking accounts of job-damaging material.”

By the way, Ms. Sacco’s viral tweet does not mark the first time she’s shown a lack of judgement in the world of social media. Last January she tweeted, “I can’t be fired for things I say while intoxicated right?” Sober or otherwise, she has much to learn about public relations.

In the meantime, what do you bet that IAC will be scrupulously vetting the social networking history of its next Director of Corporate Communications?

Unemployed Need Not Apply

A non-profit organization in our area is well known for its program to help unemployed individuals find work.  Imagine my surprise yesterday when I read a job posting from this organization for an Executive Coordinator. The posting ended with a statement that any applicants who had not been employed continuously for the past six months would not be considered for the position.

In other words, while this organization continues to solicit and receive funds from contributors to coach job seekers on how to best find work,  they themselves would not consider any of these job seekers, no matter how qualified, for employment.

This ad epitomizes a trend among employers around the country. They separate applicants into two categories: the Haves and the Have Nots. Those who currently have a job are considered for hire; those who do not are automatically excluded. One could make a case that having a job, any job no matter how menial, reflects a certain integrity and work ethic valued by prospective employers. However in an era when even the most menial jobs are difficult to come by, treating current employment as a prerequisite condemns the currently unemployed to become even more unemployable as the gap on their resumes continues to widen.