Employees and job applicants with disabilities are protected from discrimination by the federal Americans with Disabilities Act (ADA). An employer may not discriminate against someone with a disability, as long as the individual is qualified (in other words, the employee or applicant has the necessary degree, licensing, experience, and so on) and can perform the job’s essential functions, with or without an accommodation. Many states have similar laws prohibiting disability-based discrimination.
The protection of the ADA is not absolute, however: There are a handful of defenses to a disability discrimination claim. Among them is the direct threat defense, which allows an employer to fire employees who pose direct threats to the safety or health of themselves or others, even if that employee is qualified and can otherwise do the job.
An employee with a disability presents a direct threat only if there is a significant risk of substantial harm to the employee or others. This is intended to be a hard standard to meet; employers who believe stereotypes and generalizations don't cut it. For example, an employer cannot fire an employee who seeks time off for treatment for depression because the employer thinks employees with mental health issues are likely to be violent.
Employers may not rely on general or outdated information about an employee’s disability. Instead, the employer must make an individual assessment of the employee’s current situation, making a reasonable medical judgment relying on the most current medical knowledge or the best available objective evidence.
An employee who works in a warehouse has epilepsy that is well-controlled with medication. The employee has not had a seizure in a couple of years, drives every day, and shows no sign of impairment. The employer fires the employee based on a concern that the employee may have a seizure while lifting something heavy, creating a risk to his own safety. This is likely not legal under the ADA. The employer’s decision is based on a general concern about seizures, not on the actual medical facts of the employee’s condition. However, if the employee’s epilepsy was not controlled and the employee had seizures frequently, the employer’s decision would have an objective, factual basis.
Employer must consider these factors in deciding whether an employee poses a direct threat to health and safety:
These factors must be considered in relationship to each other. For example, if an employee poses an imminent risk of causing serious harm to coworkers, that might create a direct threat, even if the risk wasn’t very likely. An employee whose heart condition can cause sudden bouts of dizziness might pose a direct threat if that employee works with toxic chemicals, even if the bouts were infrequent and the employee was sometimes able to feel them coming on and stop working. Because the risk is so significant, fewer incidents might still pose a direct threat.
An employee does not present a direct threat if the risk of harm can be eliminated or minimized through a reasonable accommodation. (A reasonable accommodation is a change to the job, the working environment, or workplace rules that will allow an employee with a disability to perform the essential job functions. The ADA requires employers to provide reasonable accommodations that will allow qualified employees with disabilities to do their jobs.)
For example, if an employee mostly works behind a desk, but must occasionally drive to pick up office supplies, the employee might pose a direct threat if her seizure disorder prevents her from driving safely. If picking up office supplies is not an essential job function, the employer could assign that task to another employee or use a delivery service to bring in the supplies, which would allow the employee to perform her job without threat.
When the ADA was passed, it wasn’t clear whether an employee could be fired as a threat to his or her own health or safety. The Supreme Court decided this issue in 2002, finding that an employer could fire an employee whose disability created a serious risk that the employee’s health would suffer from doing the job. In that case, the employee had impaired liver function due to hepatitis-C, and the job involved exposure to chemicals that were toxic to the liver.
If you believe you were wrongly fired (or not hired) because your employer believed your disability created a direct threat, you should talk to a lawyer right away. The direct threat defense depends on many facts – including the type of work you do, your disability, your job duties, and much more. A lawyer can assess all of the circumstances and tell you whether you have a strong claim for disability discrimination.