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HR MATTERS E-TIPS
THIS WEEK’S E-TIP: Direct Threat Standard and the ADA
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THIS WEEK’S E-TIP: Direct Threat Standard and the ADA
Do you know how, and when, to apply the ADA’s “direct threat”
standard? Be careful – its use is narrowly restricted and cannot be
applied in many situations. |
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THIS WEEK’S E-TIP: Direct Threat Standard 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. (Free
download of ADA model
policy.)
However, the ADA statute 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. The ADA
regulations also extend the direct threat defense to include danger
to the
disabled individual. But, the statute and regulations define the
threat in
such a limited manner and impose so many burdens that most
employers are not able to invoke the standard except in extreme
circumstances.
* 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. 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.
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.
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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 that a high level of threat is necessary to invoke
it. For
example, the Eleventh Circuit, 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. It based its decision 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.
In contrast, in Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 263 F.3d
208
(2d Cir. 2001), the Second Circuit 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, at the same
time,
her doctor indicated that she did not pose a threat to herself or
others
and could perform the job.
* 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, in addition, 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 (free download of
ADA
model policy), 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 these procedures carefully, you will strengthen your
chances of complying with the ADA’s tough direct threat standard. |
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^^^^^^^^^^^^^^^^^ From Your HR Matters E-Tips Editors
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Subscribers to the
Personnel Policy Manual (print/online) and HR Policy Answers on
CD can find more information about the direct threat standard under
the
ADA in Serious Diseases, Chapter 203A, note 8.
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chapters,
go to:
http://www.hrpolicyanswers.com.
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happy to help you. |
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