How do Employers Make a “Direct Threat” Determination

The Americans with Disabilities Act (ADA) is 30 years old and employers are familiar with its general requirement to provide reasonable accommodation to qualified individuals (applicants and employees) with a physical or mental impairment that substantially limits a major life activity. A reasonable accommodation is any change or adjustment to a job or work environment that permits a qualified applicant or employee with a disability to participate in the job application process, perform the essential functions of a job, or enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. Read more.

If an applicant or employee with a disability poses a direct threat to the health or safety of himself or others, an employer must consider whether the risk can be eliminated or reduced to an acceptable level with reasonable accommodation. A direct threat means a significant risk of substantial harm. The harm cannot be speculative, or remote risk. An employer must review the facts of the situation to determine if the individual poses a direct threat to the health and safety of himself or others, that cannot be eliminated (or reduced to an acceptable level) with reasonable accommodation. How does this work in the real world?

U.S. Steel confronted this situation when it gave a conditional offer of employment to an applicant who would be driving a forklift, work with power tools and around hazardous chemicals. The fitness-for-duty exam doctor learned that the applicant had stopped taking his anti-seizure medication against his physician’s advice. The company revoked the offer of employment because he would pose a direct threat to himself and others in the workplace. In the lawsuit, the court concluded that the employer must conduct an individualized assessment of the person’s ability to safely perform the essential job functions. There are 4 key factors in the analysis:(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

U.S. Steel reviewed the following information: applicable DOT regulations, a completed health inventory form, a physical examination, and medical records and neurologist’s notes. U.S. Steel concluded that the employee’s seizures were not well controlled, and his condition was indefinite (not temporary). The nature and severity of the harm could be disastrous since his seizures caused loss of consciousness. His seizures were uncontrolled and of unlimited duration. It was imminent harm, even though he had only 4 seizures in his life, 2 episodes happened since he stopped taking his medication. This showed U.S. Steel that he was at higher risk of having another seizure.

Here are the lessons from the U.S. Steel case. First, a medical examination along with the consideration of relevant medical records is crucial to weigh the 4 factors. Second, employers should document their steps and process used to evaluate the employee, limitations/abilities, job requirements, and the probability of harm. Lastly, maintain open communication with the affected person about the company’s process and its decision, and allow for their input and consideration related to any reasonable accommodations. Read the case.

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