We have an employee that has worked for us for 18 years.  The other day, he made a minor mistake and went totally ballistic.  He began pounding a shovel on the side of a piece of equipment and said that he didn't have any friend in the workplace, he was going to kill everyone there and then kill himself.  Then he began saying that he was really stressed out about some issues at home.  Up until this time, he has been a good, reliable, hard working employee although among the other employees he has a reputation for flying off the handle.  The Supervisor sent him home for the day to calm down - which he did.  My advice from Legal is that at most, I can reprimand him because he may have a disability.  My concern is for the safety of his co-workers.  I meet with this guy tomorrow and plan to ask him to get counseling (non-mandatory EAP).  Any advice?

Your advice from legal is conservative, but arguably in the wrong direction.

Under Texas law, yelling "I'm going to kill everyone here and then kill myself" constitutes what is termed a terrorist threat.  It's called different things in different states but, typically, that's a crime.  You do not have to accomodate criminal behavior.  That's like saying a person afflicted with psychopathy and sociopathy can only be reprimanded when they actually kill people because they can't help their abnormal urges, given that those afflictions are deemed to significantly affect one or more life functions by legal counsel.

I would, literally, fire our lawyer if he said that to me in a case like that.  You are bound under OSHA to provide a safe work site.  You have an employee that has threatened your other employees and who is known to have episodes during which he cannot control his temper.  Which takes precedence, OSHA or ADA?  Are we clear that ADA even applies?  I don't think your lawyer gave it much thought.  Time to get a new lawyer in my opinion.  It's not as simple as saying you can't do anything because he "may have a disability".

My wife has a lot of ADA experience and she said that life is easy when you have EAP.  If you want to take the most conservative route, then you force mandatory EAP with pay and refuse to allow the employee to return to work until a psychiatrist (not a psychologist) says that the person is not a threat to himself or his co-workers.  This strategy accomplishes several things.  1) It takes the Company out of the decision making loop, meaning that whatever decision is made, is not due to any illegal discriminatory animus on the part of the company. 2) Because the person is paid, they cannot say that they've suffered any harm so there is no cause of action. 3) If the person turns out not to be safe around their co-workers, that call was made by a medical practitioner and not the Company, again putting liability in someone else's house.  She agrees that each case is different, each circuit is different, and whether OSHA trumps ADA or the other way around is not always clear but that mandatory EAP with pay makes all the problems go away.

Thanks, good advice.  Wish I could say the same about our attorney's advice!

i agree with txhrguy that this requires more than a reprimand as your attorney advised.  of all the information i have read about workplace violence the one point that comes across is that there were always warning signs before the incident that should have triggered action.  one of the warning signs is a threat like the one your employee issued. it should be taken very seriously. as mentioned above, maybe you should talk with your attorney about paid leave until mandatory eap/cleared by a psychiatrist.

TXHRGuy is spot-on.  This sort of behavior is also illegal in NYS. 

TXHRGuy and Regdunlop are giving you great advice.  Gone are the days when someone says "I am going to kill him!" as a joke.  When someone says that now employers need to take notice and do something about it.  If not then you will here from another employee on the witness stand saying "I heard that guy say stuff like that all the time and everyone just ignored it.  We never thought he would actually try to kill him."  This testimony will happen when the employer is getting sued over a workplace violence incident on your premises.  Taking a stand will send a strong message to all your other employees that this type of talk and/or behavior will not be tolerated. 

I say you find another attorney and get a second opinion. I don't think the first one took you seriously.  I wouldn't let this employee back on the job site until he was evaluated by a professional.