The law prevents employers from conducting examinations that would reveal an employee's disability, including mental health conditions. Even so, there are steps companies can take to mitigate the risk of those conditions escalating into workplace violence, said labor and employment attorney Michael Schmidt.

Schmidt, who has been an employment lawyer for almost three decades, serves as the vice chair of the labor and employment department at the international law firm Cozen O'Connor.

He represents employers in federal and state courts on issues such as discrimination, harassment and retaliation; wage and hour; the Family and Medical Leave Act, and the Americans with Disability Act.

Schmidt talked with Corporate Counsel about how employers can better prepare to handle mental health issues that could lead to workplace violence threats and incidents.

The conversation has been lightly edited for clarity.

Corporate Counsel: In the current environment of active shooter and workplace violence incidents, how often are you seeing cases of mental health crises in the workplace?

Michael Schmidt: The issue of mental health is certainly increasing in terms of the number of issues that we're seeing and it crosses a whole bunch of different areas.

First, there's violence in the workplace or threats of violence in the workplace, whether it is due to the mental health of an employee or related to the mental health of an external party that brings the violence or the threats of violence into the workplace.

The second aspect is on the disability accommodations front. It's certainly a lot easier for employers and a lot more obvious for employers to know when an employee has a physical disability and that the employee may need an accommodation. It is much more challenging when an employee has a mental health issue and may not even know that he or she has a mental health issue that may require an accommodation.

In light of the environment that we're in, politically and otherwise, which is ratcheting up the heat, I would say with discourse and conversation, you are seeing the issue manifest itself—both violence in the workplace and with disability accommodation issues.

CC: Can you talk about some of the federal and state laws that restrict inquiry into an employee's mental state?

M.S.: You have federal laws, and you also have state laws that may impact this. As a general matter, you're not allowed to ask disability-related questions of an employee. You're not allowed to conduct medical-related examinations, unless there are certain situations that either require an interactive discussion for a possible accommodation or if there is an individual who appears to be a direct threat to him or herself or direct threat to others. Also, if there's a particular job necessity that requires the inquiry or the examination.

However, as a general rule, employers just can't inquire about or conduct examinations that would reveal a disability whether that's a physical or a mental one.

CC: How can employers take action to prevent and minimize the likelihood of having disgruntled workers?

M.S.: It goes back to good communication, like everything else. Most lawsuits and most employment-related claims are filed by disgruntled employees who think they've been wronged or haven't been treated fairly or lawfully.

Certainly, a company is not going to be able to completely avoid employees filing claims, but I do think that a good number of issues between the employer and the employee could be resolved if there were better communication, and if the employer creates a workplace environment in which the employees feel comfortable and safe. One that they feel is healthy and that their voices are being heard.

I always use the analogy of raising kids. If you just think that you're going to be able to start talking to your kids for the first time when they are teenagers, you're less likely to have an impact. However, if you instill certain kinds of views and you create a certain kind of home and space from when they are toddlers, you're more likely to create the kind of environment you want. And that's how I look at workplaces.

If employers create a certain kind of workplace and a certain kind of open dialogue with their employees from the beginning, as opposed to after there's an issue, they're more likely to be able to minimize the number of disgruntled employees there are and certainly minimize the number of lawsuits there are as a result.

CC: What steps can employers take to make sure that legitimate cases of mental health issues are addressed and not treated as just disgruntled employees?

M.S.: While all employers typically do some sort of training of managers, HR professionals, [and] supervisors when it comes to things like harassment and discrimination, they should be thinking about doing training on these types of issues—the nature of disability laws, the nature of accommodation requirements, so that they are at least sensitive when an employee comes to them.

If an employee presents himself or herself with a particular problem or an issue, they'll know not to just sort of brush it aside or sweep it under the rug. They'll know either how to deal with it, or to take it seriously enough to bring it to the right and appropriate individual at the company.

But training is the best first step, so that the people on the front line who are getting these types of issues presented to them know what to do with them. And then, secondly, make sure employees understand that this is a workplace that treats all individuals without discrimination, that includes those with mental disabilities, and that if there is an issue or there's the need for some sort of accommodation, the company will take those seriously and address them.

CC: We've seen cases in which a former employee has returned with violence after a dismissal. How can employers safeguard the workplace against such possible threats?

M.S.: Planning and consideration ahead of time is the key to this issue.

Also, I think employers need to take a look at their physical workplace. Every company, every physical workplace, is different than the next. What types of risks exist—both in terms of those who are within the workplace and those who are outside and may try to get into the workplace.

But also, do we have any type of threat committee, safety committee, points of contact? So that if there is an emergency or an issue, there are people who are trained to know what to do—either to handle the situation right then and there, or they know who to call in terms of certain authorities.

So I think companies, in today's day and age, really need to sit down with a plan. How are we going to evaluate and address any risks from a physical workspace standpoint? And then how would we address it in the eventualities that there is a threat of violence either internally or externally.

CC: How can employers better promote mental health in the workplace moving forward?

M.S.: Well, I think one good way is to listen to the employees. Again, every workplace and every workforce is different and unique, depending on the requirements of the job and the particular company. This notion of communicating with your employees does solve a lot of problems—whether it's a town hall or some other forum that allows employees to give feedback.

Are they feeling burnout that's unnecessary on a regular basis? That kind of thing leads to mental health issues and in many cases leads to acts of violence and those kinds of issues.

To me, communicating and getting feedback from your unique workforce as to what their needs are, and then developing policies in response to that—whether it's changes to your time off and PTO policies, whether it's changes to your work schedule—and then, where appropriate, changing your policies and practices so that you are being responsive to your employees' needs, but at the same time being able to operate your business.

CC: What is the legal department's role in this phenomenon?

M.S.: The legal department's role is to help coordinate with the business side and with human resources—to talk about what the rights and obligations of the company and the employee are when it comes to needs for certain kinds of accommodation and certain issues that come up from the employment side.

I do think that in-house and legal and even outside lawyers can help the business side understand what the law says their obligations are, and then how do you create a business plan and apply the law in a way that makes sense for your particular organization.