As the world reels in the wake of last month’s shocking crash of Germanwings Flight 9525 in France, many are questioning what, if anything, the airline should—or could—have done to prevent the tragedy. These questions necessarily touch on important issues about what an employer is permitted to address in pre- and post-employment medical screenings concerning an employee’s mental health.

The notion that an employer could be liable for the intentional acts of a mentally or emotionally unstable employee raises complex issues in U.S. employment law. Given that various federal and state laws limit the availability of employment-related mental health screenings, employers must balance concerns about public and workplace safety against an employee’s right to medical privacy.

For example, the Americans with Disabilities Act of 1990 (ADA) limits an employer’s ability to inquire about a job applicant’s medical status, including his or her mental health history. See 42 U.S.C. §§ 12101-12213 (2000). Within this framework, disability-related inquiries are analyzed in three stages: pre-offer, post-offer, and employment. While the ADA prohibits all disability-related inquiries prior to an offer of employment, employers are generally permitted to make disability-related inquiries and conduct medical examinations after a job offer is extended, so long as the employer does so for all employees hired into the same job category. See 42 U.S.C. §12112(d)(3); 29 C.F.R. §1630.14(b). If an applicant is screened out at this stage due to a disability, the employer must show that the decision is “job-related and consistent with business necessity.” See 42 U.S.C. §12112(b)(6); 29 C.F.R. §§1630.10, 1630.14(b)(3). An employer is generally permitted to make disability-related inquires after employment has commenced only for these same limited reasons. See 42 U.S.C. §12112(d)(4)(A); 29 C.F.R. §1630.14(c).

Thus, in higher-risk jobs with a particular potential to impact public safety, such as pilots, bus drivers, or medical providers, the ADA authorizes a wider scope of inquiry to ensure that such employees are fit to perform the functions of the job. For example, commercial pilots must undergo annual medical examinations as part of licensing requirements. See 14 C.F.R. §§ 61.121, 61.23, 67.201. However, when employers are confronted with the risk of untreated mental illness and potential resultant workplace violence in job sectors less directly connected with public safety, it can become more complicated to navigate the scope of permissible inquiry. Given the necessarily fact-sensitive nature of these situations, employers are urged to review their workplace policies concerning mental health-related inquiries, and to reach out to legal counsel for advice if necessary.