When Concern for Safety Becomes Discrimination
June 27, 2018 | Curran Leahy-Lonigro, Esq.
This week, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it is suing a Washington-based employer for terminating an employee who has epilepsy. The EEOC alleges that the company discriminated against the employee on the basis of her disability in violation of the Americans with Disabilities Act (“ADA”).
According to the EEOC’s press release, when the employee “disclosed that she has epilepsy to her direct supervisor, he… unilaterally concluded without further inquiry that she could not safely work at heights – even though [her] epilepsy was well controlled on medication, she had not requested any accommodation, and was able to work without restriction.”
The EEOC’s release paints a picture of a company that may not have had the best intentions. But, even companies with good intentions struggle to balance employee rights against safety concerns. The struggle is real and the answers aren’t black and white. So, if an employee’s disability causes concern for his/her safety or the safety of others, what should an employer do?
- Talk to the employee.
- Obtain additional information, if necessary.
- Perform an individualized assessment.
Talk to the Employee & Obtain Additional Information
It is permissible for an employer to make inquiries and/or require a medical examination to evaluate whether an employee is: a) able to perform the essential functions of his/her job; and b) whether he/she can perform the job without posing a direct threat due to a medical condition. The ADA allows inquiries and examinations if they are “job-related and consistent with business necessity.” Inquiries and exams that establish A and B, above, would generally be considered job-related and consistent with business necessity.
EEOC guidance specifically tells us: “An employer also may be given reliable information by a credible third party that an employee has a medical condition, or the employer may observe symptoms indicating that an employee may have a medical condition that will impair his/her ability to perform essential job functions or will pose a direct threat. In these situations, it may be job-related and consistent with business necessity for an employer to make disability-related inquiries or require a medical examination.”
Perform an Individualized Assessment
The ADA defines direct threat as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The determination that an individual with a disability poses a direct threat must be based on an individualized assessment of the person’s present ability to safely perform the essential functions of the job. In determining whether an individual poses a direct threat, the factors to be considered include:
- the duration of the risk;
- the nature and severity of the potential harm;
- the likelihood that the potential harm will occur; and
- the imminence of the potential harm.
EEOC guidance tells us that the determination that a direct threat exists “must be based on objective, factual evidence – not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes – about the nature or effect of a particular disability, or of disability generally. Relevant evidence may include input from the individual with a disability, the experience of the individual with a disability in previous similar positions, and opinions of medical doctors, rehabilitation counselors, or physical therapists who have expertise in the disability involved and/or direct knowledge of the individual with the disability.
We help our clients navigate the ADA every day. Please reach out if we can assist.
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