Chapter 26 - § 26.6 • OTHER RELEVANT FEDERAL STATUTES

• Jurisdiction: Colorado

§ 26.6 • OTHER RELEVANT FEDERAL STATUTES

There are three other federal statutes that a lawyer advising employers on workplace violence issues should be familiar with. These are the Americans with Disabilities Act, the Employee Polygraph Protection Act, and the Violence Against Women Act.

§ 26.6.1—The Americans With Disabilities Act

The Americans with Disabilities Act (ADA) may be found at 42 U.S.C. §§ 12101, et seq. Businesses with fewer than 15 employees are not covered by the employment provisions of the ADA.

In the context of workplace violence, the ADA may come into play when an employer or prospective employer believes an employee or prospective employee has a disability, such as a mental impairment, that poses a threat to the safety of others in the workplace. The ADA also governs the types of questions an employer may ask a job applicant; for instance, it prohibits prospective employers from asking applicants questions pertaining to their medical history and mental health history.

The Act requires that covered employers make reasonable accommodation to the known physical or mental limitations of otherwise qualified individuals with disabilities, unless it results in undue hardship. 42 U.S.C. § 12112(b)(5)(A).

The ADA does not require an employer to employ a person who, as a result of his or her disability, poses a direct threat to the health or safety of others in the workplace. This is true even if the conduct is the result of a mental condition that would qualify as a disability under the ADA. The ADA recognizes an affirmative defense for actions under a job-related qualification standard, which may include a "requirement that an individual shall not pose a direct threat to the health or safety of other individuals." See 42 U.S.C. § 12113(b).

A direct threat is defined as "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices or procedures or by the provision of auxiliary aids or services." 42 U.S.C. § 12182(b)(3); 29 C.F.R. § 1630.2(r). The Tenth Circuit has adopted a bifurcated approach that requires the plaintiff to prove he or she can perform the essential functions of the job and, where performance of those duties affects the safety of others, he or she must also prove that he or she can do so in a way that does not pose a direct threat. Where the issue of direct threat is raised only as a defense, it is the defendant's burden. See Justice v. Crown Cork & Seal Co., 527 F.3d...