What’s the smart move for HR managers who think an employee poses a safety risk? May you ask questions? May you demand a physical? Today’s expert sorts it out.
The Americans with Disabilities Act (ADA) does limit your freedom to make disability-related inquiries relating to safety risks, says attorney Lindsay E. Harris. However, with proper understanding of the legal framework, you should be able to fashion an approach that will lawfully allow the desired disability-related inquiries.
Harris is senior counsel at Speer Associates/Workplace Counsel, an employment law and employee relations consulting firm in San Francisco.
ADA Building Blocks
To deal with safety risk situations, Harris starts with three ADA building-block concepts:
1. Direct threat
2. Individualized assessments
3. Rules governing disability-related questions
Direct Threat
Under the ADA, an employer may exclude a person from employment for safety reasons only if the person’s employment would pose a direct threat. “Direct threat” means “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” A “significant” risk means a high—not just a slightly increased—risk.
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Individualized Assessments
The direct threat determination must be based on an individualized assessment of the person’s present ability to safely perform the job functions. The assessment must be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence.
According to the Equal Employment Opportunity Commission (EEOC), an individual does not pose a direct threat when operating machinery simply because he or she takes medication that may diminish concentration or coordination in some people as a side effect.
Whether the person actually poses a direct threat is something that must be determined on a case-by-case basis. If the person is experiencing side effects, the employer must determine the nature and severity, how they affect the employee’s ability to safely operate machinery, and whether the individual has had safety problems in the past when operating machinery while taking the medication.
Likewise, for a person with psychiatric disabilities, the employer would have to identify the specific behavior that would pose a direct threat.
If the assessment establishes a significant risk of substantial harm, the employer must determine whether there is a reasonable accommodation that will reduce or eliminate the risk.
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Preemployment Medical Exams
Under the ADA, after a job offer but before employment commences, employers can require applicants to undergo medical exams and may condition the job offer on the results. The employer must require everyone in that job category to submit to the exam.
If you deny employment based on the exam, you must be able to show that the reason was “job related and consistent with business necessity” and that no reasonable accommodation was available.
Post-Employment Medical Exams and Inquiries
Once an applicant is hired, an employer can require a medical exam or ask the employee about disabilities only if it can show that the requirements are job-related and consistent with business necessity.
An employer can meet this standard if it has a reasonable belief, based on objective evidence, that an employee’s ability to perform an essential function will be impaired by a medical condition or that an employee will pose a direct threat because of a medical condition.
For example, says Harris, take a limousine driver with a known disability of manic depression who recently suffered a manic episode brought on by a round-the-clock driving assignment and resulting in reckless driving. The employer wants to assign the driver to another round-the-clock shift but is concerned that this may trigger another episode and bout of unsafe driving.
According to EEOC, under these circumstances, the employer may make disability-related inquiries or require a medical exam because it has a reasonable belief, based on objective evidence, that the employee will pose a direct threat to himself or others.
In the next issue of the Advisor, rules on periodic medical exams for safety-sensitive positions and an introduction to an extraordinary turnkey wellness program that could help avoid safety problems.