If a job applicant has a liver disorder that might be worsened by exposure to chemicals at work, or a back problem that would be aggravated by heavy lifting, you might wonder whether you can refuse to hire the person so you won’t be on the hook for future workers’ comp benefits. Now, in a potentially far-reaching new ruling, the Ninth Circuit Court of Appeal says you can’t turn down a worker with an ADA-protected disability who is otherwise qualified just because the job might endanger the person’s health or safety. In other words, you may have to hire someone for a job that could hurt them—or risk getting sued.
Employee Barred From Refinery Job
Mario Echazabal worked for a maintenance contractor based at Chevron’s El Segundo oil refinery. He twice applied to work directly for Chevron, but was rejected after pre-employment medical exams revealed he had hepatitis C, which could be exacerbated by chemicals at the refinery.After the second rejection, Chevron told the contractor to remove Echazabal from the plant or transfer him to a job where he wouldn’t be exposed to solvents. As a result, Echazabal lost his refinery job.
Employee Charges Disability Discrimination
Echazabal sued, claiming Chevron discriminated against him in violation of the Americans with Disabilities Act. Chevron countered that under the Equal Employment Opportunity Commission’s ADA regulations, it could legally exclude Echazabal from the refinery because his job duties posed a “direct threat” to his own health and safety.
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Direct Threat Defense Is Narrow
The Court of Appeal disagreed with Chevron. It said the ADA allows employers to restrict the activities of workers who pose a significant risk to the health or safety of others in the workplace, such as co-workers or customers. But you cannot block disabled employees from your workforce—or cause your contractors to do so—simply because their own health or safety might be compromised. Consequently, the court gave Echazabal the green light to proceed with his discrimination claim.
Conflict With EEOC Guidelines And State Law
This ruling is at odds with decisions by other courts around the country, and it’s possible the U.S. Supreme Court may review the issue. Nevertheless, the EEOC has said it will consider revising its guidelines to make them consistent with this case. California law currently allows you to exclude employees whose duties would threaten their own health or safety. However, to decrease the chance of a lawsuit, the best approach is to follow the Ninth Circuit’s stricter interpretation of the ADA until there is further clarification.
Steps To Take Now
Here’s what you can do to avert problems:
- Minimize the risks. If an employee with a health problem insists on working in a potentially hazardous environment, look for every way to reduce danger to them, says Wendy Woldt, principal in the Torrance law firm of Woldt & Associates. This could include providing additional protective equipment or, with the employee’s consent, a transfer to a less risky position if one is available. It’s also a good idea to fully advise all workers of their job’s known hazards so they are aware of what they are getting into.
- Require pre-employment medical examinations. You can uncover potential problems and get accommodation suggestions from a medical expert. Plus, if the employee files a workers’ comp claim later, the pre-employment physical may show that their job activities didn’t entirely cause their condition. This can reduce the claim’s cost if there’s permanent disability.
- Determine whether the person is qualified. Based on this case, you can’t deny someone a potentially hazardous job if the person can do the work and is willing to risk injury or illness. But you can terminate or refuse to hire a disabled individual who can’t perform the essential job functions with or without a reasonable accommodation.