Let’s say that you have an employee who you know has a medical condition which you believe is creating a safety risk in him doing his job. For instance, an employee with a seizure disorder that cannot be entirely controlled by medication and results in loss of consciousness, is likely a safety threat in a job that requires supervision of young children. In these kinds of situations, the employer does not have to continue employment. But the question is, how can an employer accurately assess whether an employee poses a direct threat to the health or safety of himself or others?
The 7th Circuit Court of Appeals this week upheld a jury finding that the City of Evanston violated the ADA when it fired a water department employee who had suffered an off duty traumatic brain injury and upon release from his doctor to return to work was observed running a red light in one instance, going to wrong work locations, and suffering from memory issues which, in some instances, resulted in him being unable to remember how to do his job. The City reported these incidents to its physician who previously conducted a fitness to return to work evaluation, who concluded, without another face to face examination, that the employee was not fit to work. Based on that conclusion, the City discharged the employee, who sued his former employer for violating his rights under the ADA.
After a jury trial, the employee was awarded over $300,000 in back pay and other damages. The City appealed, arguing, in part, that the employee’s actions of running the red light and forgetting how to do his job, presented a health and safety risk to the employees and others.
The ADA provides a defense if the employee’s disability poses a direct threat to the health or safety of other individuals in the workplace. A direct threat is a significant risk to the health or safety of others that cannot be eliminated by a reasonable accommodation. Four factors determine whether the risk is significant: “(1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that potential harm will occur; and (4) the imminence of potential harm."
The 7th Circuit Court of Appeals upheld the jury’s verdict, finding in part that the jury did not err in finding that the City did not prove a health or safety risk. The court found persuasive two facts. First, the employee’s supervisor’s statement that the employee could adequately install water meters and, maybe more importantly, that the City’s doctor concluded that the employee was unable to work based only on the information provided by the City, having only examined the employee once, prior to his return to work.
The ADA allows an employer to require an employee to undergo an independent medical evaluation to determine whether the employee’s disability, even with a reasonable accommodation, presents a health or safety risk to the employee or others. If so, then the employee may not be qualified for ADA protection. If employers have health or safety concerns with an employee doing their job, they should obtain a current medical evaluation of that employee, rather than reach their own conclusions, regardless of the fact that the conclusion was reached in good faith. A determination that the employee’s disability presents this kind of risk, will provide a good defense should the employee later raise a claim of ADA violation.