There are times when an employee’s disability is problematic to accommodate. For example, an employee with a latex allergy working in a latex environment. If it is not reasonable for the environment to change via an accommodation, how does the employer demonstrate that the employee, by working in such an environment, would be subject to a direct threat of imminent harm to him/herself?
Under the Americans with Disabilities Act (ADA), a direct threat is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” A reasonable belief that the employee would be subject to a direct threat is not sufficient to support a defense in an ADA discrimination case. The employer is required to conduct an individualized assessment of the employee’s present ability to perform the essential functions of the job. They must consider the duration of the risk, the nature and severity of the potential harm, the likelihood of the harm, and the imminence of any potential harm.
This would require the employer to obtain objective findings from a medical practitioner and other means to support the direct threat defense. The leading case on this issue is Chevron U.S.A., Inc. v. Echazabal, 536 US 73 (2002). Echazabal worked for independent contractors at an oil refinery owned by Chevron U.S.A. Inc. When Echazabal applied for a job directly with Chevron, the company's physical examination revealed he had Hepatitis C. Chevron's doctors said that the condition would be exacerbated by continued exposure to toxins at the refinery. In response to Chevron's request that the refinery reassign Echazabal to a job without exposure to toxins or remove him, the contractor that employed him laid him off. Echazabal sued Chevron for an ADA violation.
The Supreme Court, in a unanimous decision, ruled for Chevron. The Supreme Court found that the direct threat defense was permissible under the ADA. In particular, the Supreme Court found that the risk of violating the Occupational Safety and Health Act of 1970 (OSHA) was enough to show that the regulation was permissible and wrote:
However, the threat has to be identifiable and real. The fact that an employee, for example, had a back injury, does not necessarily mean that the employee who is a material handler is prohibited from lifting, as that would be a direct threat to the employee’s condition. The employer would have to make an objective investigation as to what the threat is and whether the work environment impacts the employee.
In a recent case (Spencer-Martin v ExxonMobil Corp., No. 16-789 (M.D. Louisiana, June 15, 2018)), an employee who suffered epileptic seizures worked for Exxon Mobil in a safety sensitive position as a control room operator at a chemical plant. She had experienced a seizure once before but had not had any in the six months before Exxon Mobil removed her from the job. The company confirmed the essential functions of the job and conducted medical examinations of the employee. Both confirmed that she could be a threat to other employees if she suffered a seizure doing her duties. She had sued for violation of the ADA, but the trial court affirmed summary judgement for the employer.
In another case (Mitchell v. U.S. Postal Service, No. 17-2349 (6th Circuit Court of Appeals, June 22, 2018)), a postal worker suffering from depression was cleared to return to work. However, his wife sent a letter to his supervisor questioning his condition and stating that he would likely suffer another breakdown at work. The Postal Service placed the employee on leave and asked him to provide medical documentation to confirm that he posed no threat of harm to himself or others. He refused and was eventually terminated. He sued for ADA violations, but lost. The 6th Circuit Court of Appeals held that the Post Office’s concern about workplace safety was a legitimate, nondiscriminatory reason for requesting a medical examination, and the termination was lawful.
The takeaway from these cases is that employers should avoid knee-jerk reactions. Investigate and determine the validity of any threat. Never assume. That includes identifying the essential functions of the job, obtaining objective medical review given the essential functions, and attempting to accommodate the employee to another job if possible.
Source: Shawe Rosenthal LLP 6’29/18, Barnes & Thornburg LLP 7/3/18