When Does Someone With a Disability Pose a Direct Threat to Health or Safety Under the ADA?

Employees and job applicants with disabilities are protected from discrimination by the federal Americans with Disabilities Act (ADA). Under the law, an employer can't discriminate against you because of your disability, as long as both of the following are true:

• you're qualified for the job, meaning you have the necessary degree, licensing, and experience, and
• you can perform the job's essential functions, with or without an accommodation.

Many states have similar laws prohibiting disability-based discrimination.

But the protection of the ADA isn't absolute. There are a handful of defenses to a disability discrimination claim that an employer can use, including the "direct threat" defense. Under the ADA direct threat defense, your employer can fire you if you pose a direct threat to your own safety or health, or that of others—even if you're qualified and can otherwise do the job.

This article will discuss what constitutes a direct threat under the ADA, including how your employer must weigh the risk of harm, and what to do if you believe an employer wrongly discriminated against you because of your disability.

What Is a Direct Threat to Health and Safety Under the ADA?

The ADA defines a direct threat as "a significant risk of substantial harm" to the health or safety of the employee or others that can't be eliminated or reduced by reasonable accommodations. To be considered a direct threat under the ADA, both of the following must be true:

• the harm must be significantly likely to occur, and
• the amount of potential harm must be substantial.

When Does an Employee Pose a Direct Threat?

An employee with a disability presents a direct threat only if there's a significant risk of substantial harm to the employee or others—an intentionally hard standard to meet. Employers who make judgments based on stereotypes and generalizations won't meet the standard of proof needed to satisfy the direct threat exception under the ADA.

For example, let's say you requested time off for treatment as an accommodation for your depression. Your employer can't fire you just because the employer thinks workers with mental health issues are likely to be violent. That's a stereotype that doesn't meet the ADA's direct threat standard.

Criteria Employers Must Use to Determine a Direct Threat

Your employer can't rely on general or outdated information about your disability to decide if you pose a direct threat to yourself or others. Instead, your employer must make an individual assessment of your current situation and make a reasonable medical judgment relying on the following:

• the most current medical knowledge, or
• the best available objective evidence.

If an employee's epilepsy wasn't well-controlled and the employee had frequent seizures, the employer would likely have an objective, factual basis to fire the employee that might meet the direct threat standard under the ADA.

Factors to Consider When Determining Direct Threat

Your employer must consider the following factors in deciding whether you or another employee poses a direct threat to health and safety:

• the nature and severity of the potential harm
• how likely it is that the potential harm will occur
• the imminence of the potential harm (how soon it will occur), and
• the duration of the risk.

These factors must be considered in relationship to each other. For instance, if an employee poses an imminent risk of causing serious harm to coworkers, that might create a direct threat, even if the risk isn't very likely.

When Reasonable Accommodations Can Reduce the Risk of Direct Threat

An employee doesn't present a direct threat if the risk of harm can be eliminated or minimized through reasonable accommodations. A reasonable accommodation would be a change that will allow an employee with a disability to perform the essential job functions. An accommodation could include modifications to any of the following:

• the job
• the working environment, or
• workplace rules.

The ADA requires employers to provide reasonable accommodations that will allow qualified employees with disabilities to do their jobs.

What If You Only Pose a Direct Threat to Yourself?

When the ADA was passed, it wasn't clear whether employees with disabilities who posed direct threats to their own health or safety could be fired if they didn't pose a direct threat to other employees.

The Supreme Court decided this issue in 2002, finding that an employer could fire an employee whose disability created a serious risk to that employee's health if the employee remained on 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.

What If Your Employer Used Direct Threat to Wrongly Fire You?

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 following:

• the type of work you do
• your disability
• your job duties, and
• other factors.

A lawyer can assess all of the circumstances and tell you whether you have a strong claim for disability discrimination.

_{Updated March 3, 2023}