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Disabled Individuals at Risk of Workplace Health Hazards

  • July 10, 2002

On June 10, the U. S. Supreme Court issued the third major decision of its 2001-2002 term involving the Americans With Disabilities Act -- and the third one favorable to employers. Chevron U.S.A., Inc. v. Echazabal, 536 U.S. ___ (2002) [.PDF file/221 KB/16 pgs.]. In the unanimous opinion, the Court upheld the "direct threat" regulation issued by the Equal Employment Opportunity Commission allowing an employer to refuse to employ an individual with a disability in a job which could endanger his or her own health or safety. With this ruling, the Court continues its approach to the ADA of focusing on the importance of individualized assessment and the use of objective and reliable medical opinion when making employment decisions with a minimum risk of liability.

The Chevron decision overturns a ruling by the U. S. Court of Appeals for the Ninth Circuit in favor of the plaintiff who had a liver condition which medical opinion had shown would be exacerbated by exposure to toxins in the workplace. The Ninth Circuit had said the "direct threat" defense available to employers under the ADA does not apply to employees who pose a direct threat only to their own health or safety. Reversing the Ninth Circuit and upholding the EEOC's "direct threat to self" regulation, the decision of the U. S. Supreme Court focused on three major points. First, the Court acknowledged that the ADA itself addresses the situation where an individual with a disability may pose a "direct threat to the health or safety of other individuals in the workplace." Second, the Court rejected the plaintiff's argument that if Congress had intended to include "threat to self" as part of the direct threat defense, it would have referenced it in the ADA itself. Third, the Court identified Chevron's legitimate concerns -- lost sick time, excessive absenteeism, excessive turnover from medical retirement or death, and litigation under state tort law -- about hiring an employee who poses a risk to his own health.

The Court concluded 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." It requires an expressly "individualized assessment of the individual's present ability to safely perform the essential functions of the job," reached after considering, among other things, the imminence of the risk and the severity of the harm portended.

Consistent with the Supreme Court's prior ADA decisions of the past several years, the Chevron case underscores the basic premise that the law does not bar employers from making employment decisions that may impact negatively on individuals with disabilities. "This case confirms what perhaps should have been a nonissue -- that employers have a voice in a decision about whether an individual with a disability is healthy enough to work," said Frank Alvarez, Jackson Lewis partner and coordinator of the firm's disability management practice group.

The challenge for health care employers is just beginning. At a minimum, employers seeking to defend decisions based on the "threat to self" must have obtained a "reasonable medical judgment" founded on competent medical opinions. While employer awareness of these requirements is critically important in every decision concerning an injured or ill employee, employers are likely to feel the impact most as they implement programs to prevent and manage workplace injuries. For more information on the Chevron case and its implications for health care employers, please visit our website.

©2002 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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