On August 15, the Third Circuit issued a decision that addressed, for the first time by an appellate court, the interplay between the U.S. Nuclear Regulatory Commission’s fitness-for-duty regulations and the Americans with Disabilities Act (ADA). The panel affirmed the judgment of the district court, which had found in favor of the nuclear power plant operator, who terminated an armed security officer after he failed a fitness-for-duty examination. The security officer claimed that his termination violated the ADA. The Court held that there was no ADA violation because the security officer could not perform the “essential functions” of his job.
Fitness For Duty
Nuclear operators are required to comply with NRC regulations by establishing a fitness-for-duty (FFD) program. The FFD program aims to ensure that “individuals are not under the influence of any substance, legal or illegal, or mentally or physically impaired from any cause, which in any way adversely affects their ability to safely and competently perform their duties.” 10 C.F.R. § 26.23(b).
Nuclear operators also are required to maintain an access authorization program that includes actions to monitor employees that have access to sensitive areas of the plant. Nuclear power plants must “provide high assurance” that employees “are trustworthy and reliable, such that they do not constitute an unreasonable risk to public health and safety or the common defense and security.” 10 C.F.R. § 73.56(c). This includes a psychological assessment prior to granting access. Even after access is granted, nuclear power plants must monitor workers on an ongoing basis in order to detect aberrant behaviors. 10 C.F.R. § 73.56(f). All workers are required to report suspicious behaviors, which triggers a reassessment of that employee’s access. 10 C.F.R. § 73.56(f)(3). If during the reassessment an official believes the employee’s “trustworthiness or reliability is questionable,” the official must terminate the employee’s unrestricted access during the review period.
The security officer who brought the case joined the plant security force in 2009. At that time, he had been given unrestricted access to the plant and was responsible for, among other things, protecting its vital areas and preventing radiological sabotage. The officer also carried a firearm and was authorized to use deadly force. In 2012, the officer experienced “personal and mental health problems,” including paranoia about surveillance (e.g., covert listening devices embedded in his children’s toys). The officer also appeared to have problems with alcohol and drugs.
A coworker observed changes in the officer’s behavior and reported them to a supervisor. This triggered a fitness for duty examination by a third-party psychologist, who reported that the officer was not fit for duty. Upon receipt of the psychologist’s report, the plant operator revoked the officer’s access and terminated his employment.
The officer alleged that his termination violated the ADA because “he was erroneously regarded as having a disability in the form of alcoholism, mental illness and/or illegal drug use, and that this misperception was a motivating factor in his firing.” To establish a prima facie case under the ADA, the officer had to establish that he (1) has a disability, (2) is a qualified individual, and (3) has suffered an adverse employment action because of that disability. The case turned on whether the officer was a “qualified individual.”
The Court applied a two-part test. First, the individual must satisfy the prerequisites for the position, such as appropriate educational background, employment experience, skills, and licenses. Second, the individual must be able to perform the essential functions of the position held or desired, with or without reasonable accommodation. The Court found that the officer could not perform the essential functions of his job because NRC regulations require that security officers be fit for duty and maintain unescorted access.
The Court went on to note that, while a matter of first impression for an appellate court, the decision was consistent with a broad consensus among district courts that nuclear power plant employees that lose their security clearance or are deemed not fit for duty are not qualified employees under the ADA. The Court also cited opinions of other circuit courts that applied a similar rationale to matters involving Department of Transportation regulations. So, while not a surprising decision, it nevertheless lowers the legal risks for nuclear plant operators when making employment decisions based on fitness-for-duty concerns or a loss of unescorted access.