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ADA Requires Best Available Medical Information in Making Individualized "Direct Threat" Determination

By Francis P. Alvarez
  • July 24, 2003

In a case familiar to workplace law and human resources professionals, the U. S. Court of Appeals for the Ninth Circuit ruled that an employer must use the best available medical information when making an individualized assessment under the Americans with Disabilities Act of whether an applicant poses a "direct threat" to himself or others. The court ruled in Echazabal v. Chevron U.S.A. Inc. that the ADA required more than "the advice of a generalist and an expert in preventive medicine" to conclude that the individual's medical condition met the "direct threat" requirements. "Before terminating an individual's livelihood, the ADA requires more," the court concluded.

In this decision, a divided panel of the Ninth Circuit reversed a ruling of summary judgment in favor of the employer. Despite its reliance on medical opinions that a direct threat would have existed if it hired the individual, the employer had failed to make the "individualized assessment" required by the ADA. The U.S. Supreme Court did not review this aspect of the case when it issued its June 2002 ruling in Chevron USA, Inc. v. Echazabal.

Among other things, this decision suggests employers should reevaluate the processes they follow in determining whether applicants and employees can perform jobs safely. It also calls into question the opinions of "company doctors" who are generalists. It appears now that employers, especially those doing business in the Ninth Circuit, must be prepared to argue that their "direct threat" determinations were correct, based on the best available medical evidence. This likely will force most employers to retain medical experts to offer opinions concerning the ability of applicants and employees to perform jobs safely. Employers and their counsel also will need to critically evaluate the medical judgment of doctors who, in turn, are likely to prepare more detailed medical reports justifying their opinions.

©2003 Jackson Lewis P.C. This material is provided for informational purposes only. It is not intended to constitute legal advice nor does it create a client-lawyer relationship between Jackson Lewis and any recipient. Recipients should consult with counsel before taking any actions based on the information contained within this material. This material may be considered attorney advertising in some jurisdictions. Prior results do not guarantee a similar outcome.

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