Most employers understand that the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability. However, an employer may legally decide not to hire an individual with a disability if he or she poses a “direct threat to the health and safety” to themselves or others. So, what is a “direct threat”? The Equal Employment Opportunity Commission (EEOC) regulations implementing the ADA provide that a “direct threat” is “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.” The italicized terms and phrases are important from the EEOC’s perspective.
The EEOC has provided some guidance on the direct threat analysis. According to the EEOC, an employer’s determination of whether an individual with a disability poses a direct threat to health and safety should be based on an evaluation of the individual’s present ability to safely perform the job and a consideration of the following four factors: (i) the duration of the risk; (ii) the nature and severity of the potential harm; (iii) the likelihood that the potential harm will occur; and (iv) the imminence of the potential harm. As stated in the EEOC’s response to Question 16 in its “Questions & Answers about Blindness and Vision Impairments in the Workplace and the Americans with Disabilities Act (ADA),” the harm must be serious and “likely” to occur, not remote or speculative.
Not surprisingly, some of this is common sense, but common sense is not the same as assumption: Objective and factual evidence must be used in the evaluation process. However, a federal appellate court has recently concluded that proof of an actual direct threat is not necessary; rather, an employer need only show that it “reasonably determined” that a direct threat was posed. That is, was the employer’s determination that an individual with a disability posed a direct threat (i.e., a significant risk of substantial harm) objectively reasonable based on the evaluation and factual information developed for the analysis and determination? If it was, then the individual with a disability is not a “qualified” individual under the ADA.
These can be very tough determinations. Employers will fare better if their reviews entail the development of sufficient facts to assess the significant risk of substantial harm and the likelihood of its occurrence. As with most things associated with the ADA, an interactive evaluation of the involved employee/applicant for employment should assist in the determination. And, if an interactive process is used, it will most likely provide any court reviewing the issue with the comfort that the employer has not simply made assumptions based on an individual’s disability.