If a worker poses a direct threat to their safety or the safety of others, they might not be qualified for the position under the ADA and, therefore, increase the company’s risk exposure.
A federal appeals court recently upheld a steel producer’s decision to rescind a job offer because of a worker’s epilepsy seizure disorder. The U.S. Court of Appeals for the Seventh Circuit (7th Cir.) said the risk created by the plaintiff’s condition posed a direct threat to himself and others. In a rare turn, the ADA saved the employer from exposure to increased risk both for the company and the prospective employee.
There are exceptions, but employers must accommodate disabled workers under the Americans with Disabilities Act (ADA).
Fitness for duty exam
The plaintiff applied for a job as a utility person at U.S. Steel Corporation (U.S. Steel) and was offered the job. The position was described as “safety-critical and safety-sensitive” and involved handling various types of equipment that can pose a hazard.
The ADA explicitly forbids employers from using a disability as the basis to discriminate against qualified individuals when hiring.
Employment was contingent on the plaintiff passing a “fitness-for-duty” exam before starting the job. The plaintiff explained that he had suffered three or four seizures over several years. The company nurse practitioner who conducted the exam noted that the plaintiff had stopped taking his medication without his neurologist’s approval.
The nurse contacted the plaintiff’s doctor.
The doctor did not expect the plaintiff’s condition to affect the job’s safety and health requirements. The physician also had the plaintiff take an EEG which found a “normal” result.
ADA federal regulation saved employer from increased risk
In assessing whether an applicant is suitable for the job, U.S. Steel considers the requirements outlined in the Transportation Department’s motor carrier safety medical handbook.
The handbook specifies that drivers of commercial motor vehicles must meet specific physical qualifications. One qualification is that a driver “must not have a medical history or clinical diagnosis of epilepsy or any other ailment that is likely to cause a loss of consciousness or the ability to control a commercial motor vehicle.”
Because the plaintiff’s condition – uncontrolled seizure disorder – required work restrictions, U.S. Steel could not make accommodations for the specific job, and therefore, rescinded the job offer.
The plaintiff sued. He claimed a violation of the ADA in the legal action he filed in Indiana federal court. He argued that U.S. Steel had discriminated against him based on a real or perceived disability.
A motion for summary judgment ends a lawsuit without going to trial. The trial court granted U.S. Steel’s motion for summary judgment. The court said the plaintiff’s “uncontrolled epileptic condition would have posed a direct threat to the health and safety of himself and others while working” at the Pittsburgh-based company.
The plaintiff appealed. The U.S. Court of Appeals for the Seventh Circuit (7th Cir.) affirmed the lower court’s decision.
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An uncontrolled medical condition increased ADA risk
The plaintiff argued on appeal that U.S. Steel had determined his condition was uncontrolled because they equated the two facts:
- He was not actively taking his medication.
- He had disregarded his neurologist’s treatment plan.
“The evidence shows that the plaintiff stopped listening to his neurologist and doing the one thing that brought his disorder under control,” the appeals court observed. As a result, the court agreed with the trial court that the “undisputed evidence” showed that the candidate did not have his disorder under control when he applied for work with the company.
Therefore, the court permitted the rescinded job offer.
Direct threat creates increased risk under ADA
The ADA explicitly forbids employers from using a disability as the basis to discriminate against qualified individuals when hiring. According to the federal law, a qualified individual is a person “who, with or without reasonable accommodation, can perform the essential functions of the job.”
However, the court explained that employers can use qualification standards that “screen out” individuals with a disability or a class of individuals with a disability if the qualification is job-related and is “consistent with business necessity.”
A worker may not be a qualified individual if they pose a direct threat to their safety or the safety of others, he said.
As a result, “employers can impose a requirement that an individual does not pose a threat in the workplace to his own health and safety or that of others even if doing so discriminates,” the court said.
The court said the seizures were rare, but because the plaintiff had stopped taking medication, he was at higher risk of having a seizure.
The court noted that it had previously ruled that injury is likely to occur in instances where:
- The plaintiff has not controlled their medical condition
- The disorder has an unlimited duration
- An episode associated with the ailment is capable of causing serious harm
With that in mind, the court said, “The best available medical evidence here demonstrates that all three of these characteristics are true with respect to [the plaintiff’s] seizure disorder.”
The court noted that because the seizures could cause the plaintiff to lose consciousness, the consequences could be disastrous.
As a result, the appeals court said that “the plaintiff’s condition posed a direct threat.”
The plaintiff argued that he felt “fuzziness in his left eye” before the seizures. He said a “warning signal” gave him enough time to remove himself from dangerous situations.
The court said the evidence showed the plaintiff had gotten the warning signal only before two of the seizures. Therefore, there was no guarantee that the “signal” would happen again.
In general, “employers that are subject to the terms of the ADA have an obligation to engage in the interactive process with a qualified employee who has a disability and is requesting a reasonable accommodation,” David Miklas, a Florida-based employment law attorney, said in an interview.
The worker must be able to perform the job’s essential functions, with or without an accommodation, to be “qualified.” However, if the employee is not a qualified individual, “you never get to that point,” he said.
“A worker may not be a qualified individual if they pose a direct threat to their safety or the safety of others,” he said.
If the worker is not a qualified individual, the employee can’t successfully sue under the ADA. This is because the employer would probably be able to get the case dismissed in the early stages of the proceedings if the employer can prove that the plaintiff is not qualified.
However, he reminded, employers have to establish the direct threat. “You can’t just say: Oh, he’s got schizophrenia, so he’s a direct threat,” Miklas said. “You can’t make those kinds of assumptions.”
An individual assessment
“Where there’s an ADA issue, the employer has to look at the facts of that particular case,” he said. An employer can’t say that everyone with epilepsy doesn’t require an accommodation.
“The circumstances surrounding the ailment might be different. Employers have to do an ‘individualized assessment’ of each person requesting an accommodation,” Miklas said.