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HR MATTERS E-TIPS
THIS WEEK'S TIP: Direct Threat and the ADA
Published by Personnel Policy Service, Inc.
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THIS WEEK'S TIP: Direct Threat and the ADA
Do you know how, and when, to apply the ADA's "direct threat"
standard? Be careful – its application is narrowly restricted and cannot
be applied in many situations. |
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THIS WEEK'S TIP: Direct Threat
and the ADA
Most employers understand the basic requirements of the Americans
with Disabilities Act (ADA). Under that law, employers with 15 or more
employees may not discriminate against qualified individuals who have
disabilities and may have to accommodate them to allow them to perform
the essential functions of their jobs.
However, the ADA allows you to refuse to hire, or to terminate or
demote, a disabled individual who poses a "direct threat" to the health
or
safety of other employees, customers, or the public. (See 42 U.S.C.
§12113(a) and (b).) The ADA regulations also extend the direct threat
defense to include danger to the disabled individual. (See 29 C.F.R.
§§1630.2(r).) But, the statute and regulations define the threat in such
a limited manner and impose so many burdens that most employers will
not be able to invoke it.
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Editor's Note regarding citations used in this article:
References to "U.S.C." and "C.F.R." refer to the United States Code and
the Code of Federal Regulations. They are the official government
publications for federal statutes and regulations, respectively.
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* Direct Threat is Difficult to Prove *
Very simply put, the direct threat standard is difficult to meet. First,
you must be able to show that there is a significant risk of substantial
harm to the health or safety of the disabled individual or others.
Second, you must be able to demonstrate that the threat cannot be
eliminated or reduced by reasonable accommodation. (See 42 U.S.C.
§12113(b)
and 29 C.F.R. §§1630.2(r) and 1630.15(b)(2).) Finally, your
determination
that an individual poses a direct threat must be based on reasonable
medical judgment that relies on the most current medical knowledge
available and that takes into account:
1. The duration of the risk;
2. The nature and severity of the potential harm;
3. The likelihood that the potential harm will occur; and
4. The imminence of potential harm. (See 29 C.F.R. §1630.2(r).)
The Supreme Court, in Chevron U.S.A. v. Echazabal, 536 U.S. 73
(2002), explained the standard. In that case, the Court determined that
the standard does not allow employers to rely on general stereotypes to
deny a disabled person a job. Instead, employers must engage in an
individual assessment that considers many factors including the disabled
worker's ability to perform the job and the medical evidence supporting
the direct threat decision.
Similarly, in Bragdon v. Abbott, 524 U.S. 624 (1998), the Court pointed
out that a good faith belief that the risk is significant is not enough
to
meet the standard. The determination of "significant risk" must be based
on a medical or other objective or scientific belief. |
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Many other courts have attempted to apply the standard, and their
decisions show the high level of threat necessary to invoke it. For
example, the Eleventh Circuit Court of Appeals, in Waddell v. Valley
Forge Dental Associates, Inc., 276 F.3d 1275 (11th Cir. 2001), cert.
denied, 535 U.S. 1096 (2002), determined that a dental practice did
not
violate the ADA when it terminated a hygienist who was HIV-positive.
The court concluded that the employee posed a significant risk of
HIV
transmission to his patients based on several factors, including the
fact
that a dental hygienist could cut or prick his finger while
performing a
procedure in a patient's mouth. The court noted that reliable
medical
opinion indicated that, if such an event occurred, the hygienist
could
expose a patient to HIV.
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In contrast, in Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d
208
(2d Cir. 2001), the Second Circuit Court of Appeals found that the
employer could not show that an employee with epilepsy who worked in
a convenience store posed a direct threat to herself or others. The
employer did not provide any evidence that the employee failed to
perform her job duties or caused harm to others because of her
epilepsy.
And, on the other hand, her doctor indicated that she did not pose a
threat to herself or others and could perform the job.
Similarly, in a rehearing of Echazabal v. Chevron U.S.A. Inc.
(above),
336 F.3d 1023 (9th Cir. 2003), the Ninth Circuit determined that the
employer could not use the "direct threat" defense. The employer
based
its conclusions, that the employee's liver disease posed a potential
for
harm to himself, on general statements rather than on the "most
current
medical knowledge and/or the best available objective evidence."
* Limit Use of Direct Threat Standard *
As these court cases demonstrate, most employers will have a hard
time
meeting the "direct threat" standard. Clearly, to invoke it, you
must be
able to show an immediate and serious threat of harm to the employee
or to others. And, you have to be able to show that you cannot
reduce
the harm by providing a reasonable accommodation.
If you plan to rely on the direct threat standard, you should be
prepared
to back up your decision with clear, factual, and objective evidence
that
shows a high probability of substantial harm to the individual or
others.
This evidence should be supported by current medical and scientific
rationale. Remember, generalized or paternalistic fears about the
person's health will not hold up in court. Make sure, too, that you
document what accommodations you considered and why they did not
sufficiently minimize the risk. If you work through all these steps
carefully, you will strengthen your chances of complying with the
ADA's
tough direct threat standard. |
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Subscribers to the
Personnel Policy
Manual and
HR Policy Answers
on
CD can find more information on :
* the ADA and the direct threat standard in Serious Diseases,
Chapter 203A, note 8.
Not a subscriber? If you would like to order any of these policy
chapters,
you can go to
http://www.hrpolicyanswers.com/xstore/ |
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Information provided in HR Matters E-Tips is researched and reviewed
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