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Americans With Disabilities Act: New Ruling Examines Standards For Refusing To Employ Workers Who May Be At Risk For Injury

An employee has a history of fainting spells, and you’re worried that during one of these episodes the person may injure herself or another worker. What are your options? Although the Americans with Disabilities Act allows you to fire or refuse to hire an employee who poses a “direct threat” to herself or others, a new court ruling makes clear that this can be a tough standard to meet. And even if the employee admits to being unable to work, that’s not always the end of the story.

Cashier Has Fainting Episodes

Vera Nunes worked as a cashier at a Northern California Wal-Mart store. She suffered for years from a disorder causing her to periodically lose consciousness. After several fainting episodes at work, Wal-Mart encouraged Nunes to take a medical leave of absence.

Unable To Work

During her leave, Nunes received temporary State Disability Insurance (SDI) benefits. As part of the SDI application, Nunes and her doctor certified that she was incapable of performing her regular and customary work. After being hospitalized, Nunes was eventually able to learn stress-reduction exercises to help control her disorder.

Terminated While On Leave

Although Wal-Mart’s benefit plan gave employees the right to take medical leaves of absence for up to one year, Wal-Mart terminated Nunes after she had been out for about seven months. The retailer told Nunes she had failed to submit required medical forms and that Wal-Mart needed someone to fill her position during the upcoming holidays.


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Medical Problems Under Control; Worker Sues

Nunes was subsequently hired as a cashier at McDonald’s. She claimed that she had no fainting incidents on her new job and sued Wal-Mart for discriminating against her because of her disability. Wal-Mart asked to have the case thrown out before trial, claiming among other things that Nunes was a safety threat to herself and others. The Ninth Circuit Court of Appeal, however, turned down Wal-Mart’s request and allowed Nunes to put her case to a jury.

Application Statements Don’t Bar Recovery

Wal-Mart first argued that Nunes’ own statements on her SDI application proved she couldn’t work and, therefore, her firing was justified. But the appeals court ruled that a jury could find that Nunes was qualified to perform her job functions when she completed her leave. Plus, a jury could decide that the medical leave itself was a reasonable accommodation that Wal-Mart was legally required to provide.In ruling against Wal-Mart, the court pointed to the company’s own written policy allowing medical leaves. The court also noted that Wal-Mart regularly hired temporary help for the holiday season and therefore may not have really needed to permanently fill her slot. All of these facts suggest that allowing Nunes to complete her medical leave would not have been an undue hardship on Wal-Mart.

Not A Direct Threat

The court also rejected Wal-Mart’s contention that Nunes’ case should be thrown out because she posed a direct safety threat to herself or other workers. To be considered a direct threat under the ADA, the employee’s condition must pose a significant health and safety risk that cannot be eliminated with a reasonable accommodation.In this case, a doctor testified that Nunes could have hurt herself or others if she suffered an attack while carrying something heavy over her head. But the court pointed out that given Nunes’ job duties as a cashier, a jury could conclude that it would not have been an undue hardship on Wal-Mart to agree to a restriction on the weight she could lift, thereby reducing the risk to herself and others.

How Much Danger Is Enough?

Whether disabled employees can do their jobs safely-especially without injuring or reinjuring themselves-is a common concern. But the facts of each situation need to be evaluated very carefully. For example, the court’s ruling in the Wal-Mart case could have been different if Nunes were employed in a more safety-sensitive type of job-such as operating a forklift. Since most cases are not clear cut, you’ll need to get medical advice to help you evaluate the severity of the potential harm, how long the risk will be present, the likelihood of the harm occurring and the imminence of the danger, along with possible accommodations.