Issue 1: Can an employer refuse to hire an applicant because his/her performance on the job would endanger his own health (or others) due to a disability? In a major ADA case, the U.S. Supreme Court says, "yes."
The case was Chevron USA, Inc. v. Echazabal. Chevron refused to hire Mario Echazabal because of his liver condition-which condition Chevron's doctors said would be exacerbated by continued exposure to various toxins at the refinery. Chevron argued it was concerned that this applicant, if hired, could risk OSHA violations by Chevron somehow. Fortunately for Chevron, the EEOC Agency had an interpreting regulation on point that employers could refuse to hire a person because his performance on the job could endanger his own health. The U.S. Supreme Court upheld the EEOC's "direct threat to an employee's own health" regulation as a reasonable extension of the American with Disabilities Act's (ADA) legal defenses sections stating:
(a) In general.-It may be a defense to a charge of discrimination under this chapter that an alleged application of qualification standards, tests, or selection criteria that screen out or tend to screen out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation, as required under this subchapter.
(b) Qualification standards.-The term "qualification standards" may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.
In other words, the Court extended a safety-threat-to-others hiring defense to include a safety threat to the employee himself.
All this presumes, of course, that the employer cannot make a reasonable accommodation, without undue hardship to the employer, which accommodation might have allowed the applicant (or employee to perform the job without being a "direct (safety) danger" to himself/herself or to co-workers.
But the tougher question is one we have helped numerous PMA members on recently. What about current employees who become significant safety risks?
Issue 2: Can employers remove or terminate workers who pose "significant risk of injury to themselves or others? What to do with
- 85-year-old Fred, a long-time valuable maintenance worker who "forgot" his fourth consecutive electrical machinery lockout?
- or press operator Rose who suddenly has pre-seizure or stroke signs while on the production line?
- or Manuel, the head tool-and-diemaker with recurring epileptic episodes?
For starters, the perceived "danger" cannot be old age, or any age. That would be prohibited age discrimination and potentially even a prohibited "perceived" disability under the ADA. No, the direct threat must involve much more-there must be a well-documented "significant risk" to co-workers, to the employee, or to customers.
Three cases are helpful to show how the courts view this high threshold of employer defense:
In School Bd. of Nassau Cty. v. Arline, to determine the existence of a significant risk, courts must make factual findings concerning the following four factors: "(a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm."
In Nunes v. Wal-Mart Stores, "In evaluating a direct threat defense, a court should first consider whether the employer has demonstrated that the employee cannot perform the job without a significant risk of harm. If the court determines that such a risk is posed, then it must ask whether the employer can make a reasonable accommodation, without undue hardship to the employer, so that the employee can perform her job without such risk. Such an analysis necessarily requires the employer to gather 'substantial information' about the employee's work history and medical status, and disallows reliance on subjective evaluations by the employer."
In Morton v. UPS, "[O]thers in the workplace' includes not only co-employees but also customers, at least where the customers are present in the workplace. Combined with the focus on danger to other individuals in the workplace, the absence of any job-related requirement suggests that the direct threat defense was meant as a very narrow permission to employers to exclude individuals with disabilities not for reasons related to their performance of their jobs, but because their mere presence could endanger others with whom they work and whom they serve."
We had a good result last month for a Northeast PMA Member who had a messy set of citations issued following a very disgruntled worker's complaint to OSHA about every press in the shop, including a willful citation on power press guarding for the backs and sides of nearly all of the presses. The complaining employee attempted to participate in the informal conference, but we convinced the Area Director to exclude the employee by citing the law section that only employee representatives can participate. In negotiations with the Company president, OSHA adamantly refused to reduce the willful classification because, in their words, they had a clear case of willful. If allowed to stand, the willful would be severely detrimental to all of the Company's presses for the future. The Company president called me to speak directly with OSHA's Area Director. In a very brief phone call, I convinced the Area Director to drop the willful to a serious classification and obtained a non-admissions clause, which they had been refusing when dealing exclusively with Company management. The PMA Member received all of this favorable treatment under the 3-hour PMA Hotline service without any expense for legal fees on a citation where OSHA was really dug in. I believe we also helped the attitude of OSHA toward the Company by getting them to recognize cooperation through a State-OSHA consultant's visit, which everybody agreed to.