When Is an Employee a “Direct Threat” in the Workplace Under the ADA?
A recent case offers a good reminder that there are limits on the protections offered by the Americans with Disabilities Act to employees with disabilities. Among those – employees cannot pose a direct threat to themselves or others. And it further provides an overview of how to determine whether such a direct threat exists.
Background of the Case. In Pontinen v. U.S. Steel Corp., the company extended a contingent offer of employment, but subsequently discovered that the applicant had an “uncontrolled” seizure disorder based on the fact that, having been seizure free for some years, he had chosen to stop anti-seizure medication against his doctor’s recommendation, and was therefore at risk for a recurrence. After extensive investigation into the applicant’s medical history, including consultation with the applicant’s doctor and review of his treatment notes, and in reviewing the job requirements, the company determined that the applicant would need work restrictions that made him unable to perform the job in question. The job offer was rescinded on the grounds that the applicant posed a direct threat to himself and others in the workplace, and the applicant sued.
Direct Threat Under the ADA. Under the ADA, an employer may use a qualification standard that screens out an individual with a disability if they pose a “direct threat” to themselves or others in the workplace. That term “means a significant risk of substantial harm … that cannot be eliminated or reduced by reasonable accommodation.” Whether an employee poses a direct threat requires an individualized assessment that is based on a reasonable medical judgment relying on the most current medical knowledge and/or on the best available objective evidence. The assessment must consider: (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 the potential harm.
The Court’s Opinion. The U.S. Court of Appeals for the Seventh Circuit first found that the employer’s decision was based on adequate medical evidence, including the applicable regulatory requirements for the (DOT-covered) position, the health form completed by the employee, a physical examination, the response of the employee’s doctor to a medical referral form, and the doctor’s treatment notes.
Contrary to the applicant’s contention that the employer’s decision was based on preconceived notions of seizures generally, the Seventh Circuit also found that the employer had performed an individualized assessment that specifically examined the applicant’s seizure and treatment history.
The Seventh Circuit then turned to the direct threat analysis itself. It found the duration of the risk was indefinite, given the doctor’s warning that going off the medication would increase the risk of seizure. It found that the nature and severity of the harm weighed in favor of a direct threat finding, given the potentially catastrophic consequences of his loss of consciousness in a job involving the use of torches, power tools and equipment, vehicles, and hazardous chemicals, among other dangerous things. Given the uncontrolled nature of the condition, the Seventh Circuit found that harm was likely to occur. While it was unclear how imminent the harm would be, given the long periods between seizures, it was nonetheless possible that it could happen at any time. In sum, the Seventh Circuit found all the factors weighed in favor of a direct threat finding.
Lessons for Employers. The employer in this case did an excellent job in making a direct threat assessment. This included:
- A medical examination regarding the applicant’s ability to do the job. Under the ADA, an employer may require applicants to undergo post-offer, pre-employment testing if all employees in the same job category are required to undergo such testing. This may be a wise requirement for positions involving strenuous physical duties or working with potentially dangerous tools and items.
- A thorough exploration of the applicant’s medical history. Rather than just proceeding on the basis of the applicant’s answer on a medical history form, the employer sought additional information from the applicant’s doctor.
- A detailed articulation of the requirements of the job that would be impacted by the applicant’s condition – including the tasks performed and equipment used specifically in the position.
- Having experienced Company personnel evaluate the information. In this case, Company representatives involved in the assessment had medical training – a nurse and a medical officer.