Norman Hutton, a diabetic who worked for Portland, Ore. based chlorine manufacturer Elf Atochem North America Inc., sued for disability discrimination after he was terminated following a series of on-the-job hypoglycemic episodes. Elf claimed it didn’t have to keep Hutton in his job because his condition created a direct safety threat to the workplace—and now the Ninth Circuit Court of Appeals has agreed. We’ll explain what happened.
Diabetic Has Incapacitating Episodes At Work
As a chlorine finishing operator, Hutton had to work rotating day, swing and graveyard shifts. He operated, without supervision, the equipment that produced, stored and transferred liquid chlorine.
While working at Elf, Hutton experienced a number of diabetic episodes during which he had difficulty communicating with co-workers or lost consciousness. Eventually, Elf suspended him and required him to undergo a fitness-for-duty examination by Dr. John Reichle, an occupational physician.
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Doctor Says Worker Poses A Serious Safety Risk
After reviewing Hutton’s medical history, Reichle determined Hutton would probably have further hypoglycemic incidents, given how poorly he managed his diabetes. Reichle refused to recommend Hutton’s reinstatement, stating that as “an unsupervised operator, he would be at serious risk of death and would be placing the surrounding community at risk of a catastrophic event.”
Reichle suggested that a reasonable accommodation might be to eliminate Hutton’s swing and graveyard shift rotations. Regularly working the day shift would make it easier for him to monitor his blood glucose levels. Reichle also suggested placing Hutton in a position where other employees could observe him.
No Appropriate Positions Available
Hutton met with company and union representatives to determine whether alternative positions he could perform were available. The group concluded, however, that Hutton didn’t have sufficient seniority to displace day-shift workers who might have jobs that would fit his medical restrictions. Plus, the group found Elf didn’t have to create a new position for him. So Elf notified Hutton that there were no vacant positions that met his medical requirements.
Employee Claims Disability Discrimination
Hutton sued. He charged that under the Americans with Disabilities Act, Elf had to provide him with a reasonable accommodation. Elf countered that it could legally exclude Hutton from the plant because his diabetes created a “direct threat” to himself and others in the workplace. A lower court agreed with Elf and dismissed the lawsuit.
Court Says Employee Posed Direct Threat
The Ninth Circuit Court of Appeals, which covers California, upheld the ruling. The court explained that to be considered a direct threat under the ADA, the employee’s condition must pose a significant health and safety risk to others in the workplace that cannot be eliminated with a reasonable accommodation.
The court found that the actual risk of Hutton’s causing a chlorine accident during a diabetic episode was small. But the results could be disastrous if Hutton became unconscious, chlorine spilled, converted to gas and became potentially fatal to co-workers and others near the facility. Thus, the court determined that Hutton’s condition posed a direct threat, and no available reasonable accommodations would have permitted him to stay on that job.
What To Do
Whether disabled employees can do their jobs safely is a common concern. But the direct-threat defense is extremely narrow and typically applies only in safety-sensitive types of jobs. Therefore, it’s critical to carefully evaluate each situation. Because most cases are not clear-cut, you’ll need medical advice to help you evaluate the severity of the worker’s condition, 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.