Featured Publications

Hospitality Industry: Mediation of Golf Industry Disputes Alert - January 31, 2012

Golf clubs and their developers, owners, builders, operators, managers and members are still taking their disputes to court to duke, or "club" it out. This trend continues even when there are readily available options to full-blown litigation, such as alternative dispute resolution (ADR).

More

Construction: Alert - January 30, 2012

For almost 50 years, lessors have had the ability to limit their liability for liens that arose from improvements to the leasehold made by a lessee. However, in the most recent legislative session, the Florida Legislature enacted revisions to Florida Statute ยง 713.10 that provide a potential pitfall for lessors by inserting a provision that may allow a contractor to lien the lessor's interest even where there is a recorded document advising of the limitation of liens.

More

Search Our Library

Search

  • Print Article
  • Email this page to a friend
  • Print Newsletter / Alert
Labor, Employment and Benefits
Newsletter - June 2002
 
In this Issue...
No Records Found
Employers May Reject Disabled Employees Who Pose a Direct Threat to Their Own Health and Safety
 
 June 26, 2002
 

On June 10, the United States Supreme Court unanimously held that, under the Americans with Disabilities Act, employers may screen out potential employees with disabilities that pose risks to their own health or safety. Chevron U. S. A. Inc. v. Echazabal, No. 00–1406.

The issue arose because of a difference in the language of the ADA and the EEOC regulations enforcing the ADA. The ADA allows an employer to reject a disabled employee based upon employment rules “shown to be job-related . . . and . . . consistent with business necessity,” which “may include a requirement that an individual shall not pose a direct threat to the health or safety of other individuals in the workplace.” The EEOC’s regulation carries the defense one step further, allowing an employer to screen out a potential worker with a disability for risks to his own health or safety while on the job.

The plaintiff in the case worked for independent contractors at an oil refinery owned by Chevron U.S.A. Inc. He twice applied for a job directly with Chevron, and the company agreed to hire him if he could pass a physical examination. Both times the examination showed that he had hepatitis C, a liver condition the company’s physicians said would be aggravated by his continued exposure to toxins at the refinery. As a result, Chevron refused to hire the plaintiff, and he sued under the ADA.

In support of his case, the plaintiff argued that because the ADA’s language relating to the “direct threat” defense included only threats to others in the workplace, an employer could not disqualify an employee merely because he posed a threat to himself. The Supreme Court rejected that interpretation, concluding that the ADA’s general rule allowing employers to rely on employment policies “shown to be job-related . . . and . . . consistent with business necessity” supports the EEOC’s conclusion that an employee may reject a disabled employee who presents a threat to himself.

The Supreme Court agreed that employers have a legitimate reason to screen out employees who present a risk to themselves even if they want to work: the desire to avoid litigation under state tort law and the risk of violating the Occupational Safety and Health Act. “Although there may be an open question whether an employer would actually be liable under OSHA for hiring an individual who knowingly consented to the particular dangers the job would pose to him, . . there is no denying that the employer would be asking for trouble… .”

The Court also noted that the plaintiff’s argument would mean that an employer could not screen out employees who create a serious risk to others outside the workplace. It found this result absurd, observing that, “If Typhoid Mary had come under the ADA, would a meat packer have been defenseless if Mary had sued after being turned away?”

Even though the Supreme Court has confirmed that employers may refuse to hire an employee who presents a direct threat, caution is required. The employer has the burden to establish the defense. In addition, “The direct threat defense must be ‘based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence’” and on an “individualized assessment of the individual’s present ability to safely perform the essential functions of the job… .” Included in such an assessment must be a consideration of the likelihood of the risk and how severe any resulting harm would be. Finally, the employer must show that the risk cannot be reduced by a reasonable accommodation. Before relying on the direct threat defense, an employer must obtain competent and current medical advice and should consult with its labor and employment counsel.

There is a large difference between denying jobs to people with disabilities who can safely perform those jobs with or without reasonable accommodations and forcing employers to choose between ADA liability and liability under another statute for any resulting injury. This case is yet another illustration of the willingness of the federal courts to curb the excesses of the Americans with Disabilities Act and read it in a manner consistent with common sense.

For more information, contact Mary Ann B. Oakley at 888-688-8500 or via e-mail by clicking on her name.

Related Practices