Of Disabilities and 'Significant Threats'
Question: In HR, we often become aware of disabilities affecting our employees. If it is determined that an employee's disability poses a significant threat to others, can we terminate that employee?
Answer: Generally, an employer may discharge an employee with a disability, as defined under the Americans with Disabilities Act if the disability poses "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." 42 U.S.C.A. § 12111(3). The evaluation of whether an employee poses a direct threat has many moving parts and is highly individualized. Therefore, employers should take great care in assessing each case individually and with the assistance of counsel.
Title I of the ADA applies to employers who employ 15 or more employees and to state and local government employees and bars discrimination against employees on the basis of their disabilities. 42 U.S.C.A. §§ 12112(5), 12112(a). In order to recover for an unlawful discharge in violation of the ADA, an employee must (1) have a disability, (2) be otherwise qualified to perform the job requirements, with or without reasonable accommodation, and (3) have been discharged solely by reason of his handicap. See Wurzel v. Whirlpool Corp., 482 F. App'x 1, 9 (6th Cir. 2012). An employee will not be considered as "qualified" for his position, as is required under the second element, if he poses a "direct threat." Osborne v. Baxter Health, 798 F.3d 1260, 1276 (5th Cir. 2015). A "direct threat" under the ADA is "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. § 12111(3). If an employee is a direct threat under this definition, an employee will not be responsible under the ADA for discharging that employee (or taking other actions which could otherwise be considered discriminatory). Some examples of situations wherein courts have found a direct threat include: factory workers who may unpredictably become incapacitated/have seizures, Wurzel, 482 F. App'x at 9-16; a law enforcement officer who suffered from epilepsy, Coleman v. Pennsylvania State Police, 561 F. App'x 138, 145 (3d Cir. 2014); or a call-center employee at a power company who experienced panic attacks requiring recovery time away from her post, Emerson v. N. States Power Co., 256 F.3d 506, 514-15 (7th Cir. 2001).
Though the ADA permits an employer to take action when an employee poses a direct threat to the health and safety of others, this does not give employers license to discharge disabled employees based on any and all threats that a disability may pose. There are many other considerations that must be taken into account. Some of these concerns and issues are reviewed below:
Not all threats or risks are "direct threats."
A "direct threat" does not encompass all threats and risks. Therefore, employers must consider whether the threat is in fact "direct threat" as defined by the ADA and regulations interpreting it. This requires the consideration of the four factors outlined by the Equal Employment Opportunity Commission and whether the disability can be reasonably accommodated by the employer. The EEOC's factors include: "(1) [t]he duration of the risk; (2) [t]he nature and severity of the potential harm; (3) [t]he likelihood that the potential harm will occur; and (4) [t]he imminence of the potential harm." 29 C.F.R. § 1630.2(r). A reasonable accommodation could include many things, such as job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, the provision of qualified readers or interpreters, and other similar accommodations. 42 U.S.C.A § 12111(9)(B). Arriving at a reasonable accommodation (or a determination that one does not exist) requires the employer and employee to engage in an interactive process in which the employer and employee work together to reason a final decision on the issue. For more information on the interactive process, please see our Legal Clinic from March 2014.
Because the EEOC factors and interactive process can result in innumerable permutations, employers should make sure to consider each case individually, and because what may seem to be a strong threat may not be and vice versa. For example, even if the risk posed is severe and will assuredly arise, it may not be considered a "direct threat" if it can be ameliorated by reasonable accommodations. In Osborne v. Baxter Health, 798 F.3d 1260 (5th Cir. 2015), the court found that a nurse who was deaf and could not hear patient alarms may not pose a direct threat to the health and safety of the patients because reasonable accommodations, such as visual monitors, could potentially be made. On the other hand, an issue as routine as diabetes can be considered a direct threat if the disease is not properly managed by the employee. Darnell v. Thermafiber, Inc., 417 F.3d 657, 662 (7th Cir. 2005).
The direct threat analysis does not replace the ADA's other requirements and standards.
The direct threat analysis does not replace the general analysis under the ADA. In other words, those employees who may pose a direct threat to health and safety are not considered under a different framework than employees with other disabilities. Rather, the direct threat analysis is conducted in addition to the general ADA analysis. Therefore, employers should exercise care to go about their normal processes for dealing with disabled employees.
If the employee does not self-report his or her disability, you may be limited in your actions.
How you become aware of the threat will influence your ability to act. Most commonly, the employee will report their disability to you. In such a case, you will have an affirmative duty to respond and likely will need to engage in the interactive process of finding a reasonable accommodation. See Reed v. LePage Bakeries, Inc., 244 F.3d 254, 260-61 (1st Cir. 2001); see above for further discussion of interactive process. Also, in some limited contexts, other regulations and statutes will permit mandatory medical reviews, and such threats may become apparent in these exams which can begin the interactive process. See Atkins v. Salazar, 677 F.3d 667, 670-72 (2011).
But what if the employee does not self-report yet you notice signs of a threat to the health and safety of the employee or others? Can you compel the employee to undergo medical testing and utilize accommodations? This is, again, a complex issue. What is clear is that, in most cases, you cannot order an employee to seek medical attention. In order for an employer to compel a medical examination, it must be able to prove that it had a "reasonable basis for believing that [an employee] is unable to perform the basic functions of her job [...] or pose[s] a direct threat to her own safety or the safety of others." Kroll v. White Lake Ambulance Auth., 763 F.3d 619, 626 (6th Cir. 2014). This standard will require a case-by-case, factual analysis.
In the end, the ADA does not require an employer to retain an employee who poses a health and safety risk to himself or others at work. However, as an employer, you must be cautious to avoid knee-jerk responses to perceived threats and to individually and carefully evaluate each employee's disability, in consultation with counsel, when making employment-related decisions.
Keisha-Ann G. Gray is a Partner in Proskauer's labor and employment department, resident in the firm's New York office. Proskauer Associate Lindsey Chopin, resident in Proskauer's New Orleans office, assisted with this article.