State and federal employment discrimination laws require employers to reasonably accommodate employees with disabilities in order to enable them to do their job. However, employee misconduct does not usually afford any reasonable accommodation. By way of example, if an employee threatens violence against a co-worker, employers may generally fire that employee. The employee has no constitutional freedom-of-speech rights in the private workforce because constitutional rights are those that prohibit government from inhibiting free speech. Further, the government can punish you for threatening to assault someone.

For those employees who claim they are suffering from depression, bipolar disorder, or other mental disabilities which cause them to threaten co-workers, it would be prudent to contact the company’s employment counsel to provide the next steps that could lead to the employee’s employment termination after an investigation revealed threats of violence were made. The same employee may make claims ranging from mental illness, discrimination, or whistleblower status, yet an investigation and speaking with your attorney can help determine whether the company has a good case to terminate the employee for his threats of violence against a co-worker and not because of a protected status or action.

Under the law, you are not allowed to fire someone because of their protected status (such as gender, race, disability, age, or religion) or because they took a certain protected action (such as making a worker’s compensation benefits claim or whistleblowing on the company), yet employees can be fired for misconduct. Simply put, being a jerk is not a protected class. At a minimum, the threat of physical violence if not serious makes that employee a jerk and, if serious, the employer needs to take imminent action to keep the workplace safe by removing that employee. Under some circumstances, the employee may actually need to be removed from the premises by the police and involuntarily committed to a psychiatric unit of a hospital, depending on the severity of the threat.

Employers have a duty to keep the workplace safe. This includes keeping the employees safe from threats of violence from co-workers. If and when such threats occur, it is prudent to immediately contact your employment attorney and, if need be, law enforcement to protect the safety of all employees.

J. Daniel Marr is a director and shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at dmarr@nashualaw.com.

Newsletter