From the desk of Matthew McCord, M.S., CRC, Senior Consultant – Motor Team
At JAN, we sometimes hear from employers who want to ensure they have an inclusive workplace but are concerned that an individual with a disability may pose a safety risk to themselves or others (Footnote). Employers understand that it is their responsibility to create a safe working environment, but sometimes employees create a risk to workplace safety and the question arises: “If that individual happens to have a disability, what do I need to know to keep everyone safe but stay within the bounds of nondiscrimination law?”
To answer that question, if an employee is creating a safety risk and they also happen to have a disability, employers can go through the process of determining a direct threat to ensure the employee is fairly treated. In essence, direct threat is a defense for the employer to protect themselves from serious disability-related safety risks. The Equal Employment Opportunity Commission (EEOC) states in Chapter 4 of the ADA Title I Technical Assistance Manual that:
An employer may require as a qualification standard that an individual not pose a "direct threat" to the health or safety of the individual or others, if this standard is applied to all applicants for a particular job. However, an employer must meet very specific and stringent requirements under the ADA to establish that such a "direct threat" exists.
The employer must be prepared to show that there is:
- significant risk of substantial harm;
- the specific risk must be identified;
- it must be a current risk, not one that is speculative or remote;
- the assessment of risk must be based on objective medical or other factual evidence regarding a particular individual; and
- even if a genuine significant risk of substantial harm exists, the employer must consider whether the risk can be eliminated or reduced below the level of a "direct threat" by reasonable accommodation.
- With this guidance in mind, let’s discuss its application.
Significant risk of substantial harm
This first requirement is where many disability-related safety risks fail to meet the level of a direct threat. For an individual with a disability to be considered a direct threat, the risk of harm must be significantly likely to occur AND the amount of potential harm must be substantial. If a risk would not be significantly likely to occur and cause substantial harm if it were to happen, then it is unlikely that such a situation would qualify for the direct threat defense. Risks that do not meet this requirement should still be addressed by an employer of course, and accommodations can still be considered to help lower those risks for those that need them. However, if such risks do not rise to the level of direct threat and the individual has a disability, then under the ADA the employer could not rely on the direct threat defense to remove the employee from the job.
The specific risk must be identified
An employer must be able to identify what the safety risk specifically is and articulate how the disability impacts the risk. This means that generalized fears or assumptions that someone would pose a safety risk due to having a disability would likely not be enough to qualify for the direct threat defense. Fears of safety due to an individual simply having a disability are also unlikely to qualify for the direct threat defense for similar reasons. If a specific risk cannot be identified, then it would not qualify for direct threat.
A risk must be current, not one that is speculative or remote
Employers must base direct threat determinations on the current situation. Though an employee’s health could deteriorate over time, only the present situation is relevant in making a direct threat determination. This reflects the reality that we simply do not know what the future holds. Though a disability may worsen over time, it is also possible that it may remain consistent or even improve. Consequently, direct threat determinations must be based solely on the current situation
Objective medical or other factual evidence regarding the particular individual is paramount
All direct threat determinations must be based on objective medical or other factual evidence specific to the individual employee. Although objective medical documentation is important, an employer should also examine other employee-specific information such as how the individual fared in previous jobs and how their disability-related needs were previously handled. It is important to understand that every person and job is different. Because of this, medical information and other factual evidence should be reviewed in the context of the specific employee and their job when making a direct threat determination.
Consider whether the risk can be eliminated or reduced by a reasonable accommodation
If all the above are considered, and it can be determined that a genuine direct threat due to a disability exists, then the employer should explore ways to reduce the threat to manageable levels by implementing reasonable accommodations. If reasonable accommodations can reduce the direct threat to manageable levels, then such a situation would not qualify for the direct threat defense. This is because the accommodations have made it so the risk is no longer significantly likely to occur and cause substantial harm if it were to happen. Therefore, to remove an employee with a disability from a job due to direct threat when accommodations could have made the risks manageable would likely violate the ADA.
When an employer is concerned that an individual with a disability may not be able to safely perform the functions of a job, the EEOC’s regulations and guidance establish the factors that an employer must consider. The employer must first determine whether there is a significant risk of substantial harm. The employer must also determine that there is both a specific risk and that it currently exists. The employer must also base their determination on objective medical evidence or other factual evidence relevant to that particular employee and their job. Importantly, if a direct threat does exist, the employer should consider whether a reasonable accommodation can manage the safety concerns. The good news is that JAN can help employers implement reasonable accommodations. For help exploring accommodations, contact JAN!
Footnote: The EEOC still uses risk to “self or others” but nearly every other federal agency has dropped “self” in what they consider a direct threat. This is because there is rarely ever an instance where risk to self is a justifiable reason to perform a direct threat analysis. Thus most federal regulations outside of the EEOC define direct threat as “threat to others.”