Employment ADA: Direct Threat

Statutes
Regulations
Case Law
Articles

Statutes:

42 U.S.C. 12111(3)

The term direct threat means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.

42 U.S.C. § 12113 - Defenses

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.

Regulations:

29 C.F.R. § 1630.2(r)

...The determination that an individual poses a direct threat shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.

In determining whether an individual would pose a direct threat, the factors to be considered include:

(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.

29 C.F.R. § 1630.15(b) - Charges of discriminatory application of selection criteria

(1) In general. - It may be a defense to a charge of discrimination, as described in Sec. 1630.10, that an alleged application of qualification standards, tests, or selection criteria that screens out or tends to screen out or otherwise denies 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 with reasonable accommodation, as required in this part.

(2) Direct threat as a qualification standard. - The term qualification standard may include a requirement that an individual shall not pose a direct threat to the health or safety of the individual or others in the workplace.

Case Law:

Chevron USA, Inc. v. Echazabal, 000 U.S. 00-1406 (2002).

Supreme Court upheld the EEOC regulation permitting the defense that a worker's disability on the job would pose a direct threat to his health even though the actual text of the ADA defines direct threat as only a significant risk to the health and safety of others.
The EEOC had leeway in creating this regulation because they had to balance the competing objectives in OSHA (protecting worker's safety) and the ADA.

Kapche v. City of San Antonio II, (5th Cir. August 30, 2002).

San Antonio police department refused to hire an applicant with diabetes for an officer's position. The policeman position required a bunch of driving. The district court had relied on prior 5th Circuit rulings that a driver with insulin-treated diabetes mellitus presented a substantial risk that he could injure others as a matter of law.
Due to the medical advancements since those prior circuit rulings, the consistent US Supreme Court decisions mandating an individualized inquiry under various sections of the act, and, An individualized assessment must be made on the applicant's ability to safely perform the essential functions of his job. Insulin-treated diabetes is not per se a direct threat.

Article:

Legal E-Bulletin: Americans with Disabilities Act and Section 504 of the Rehabilitation Act: The Role of Direct Threat