What happens when OSHA compliance gets in the way of ADA compliance? For example, what happens if an employer fires someone (with proper process and documentation, of course) for unsafe behavior, only to discover that this person had an undisclosed medical condition that was causing the behavior?
The medical condition qualified as a disability, which means that the employer had a duty under the ADA to use the interactive process to find a reasonable accommodation that would have allowed the employee to perform the job safely. The mistake is understandable – there was no way of knowing of the disability – but it could still result in a discrimination case, which is costly to fight, even if the employer prevails.
Alternatively, what if the disability was known, and it was the reason for the adverse action? What if the disability itself is seen as a safety liability? Can an employer use OSHA standards and the duty to keep employees safe as a rationale for discharging an employee with a disability? Will the employer still be in ADA compliance in this instance?
The EEOC says it’s possible – it could be a defense – to discharge a discrimination claim under the ADA if the action in question was truly required or necessitated by an OSHA standard. They don’t specifically address OSHA in the EEOC regulations, but they do say that if a federal law has a requirement, it could be permissible: “[i]t may be a defense to a charge of discrimination under this part that a challenged action is required or necessitated by another federal law or regulation, or that another federal law or regulation prohibits an action … that would otherwise be required by this part.”
“It’s not going to be a defense in an ADA case if you have violated the ADA while trying to comply with OSHA, unless the OSHA standard specifically states there is something you have to do (and the only way to do it would be to actually violate the ADA). That’s extremely rare,” Tiffani H. Casey confirmed in a recent BLR webinar. What this means is: even though it is technically allowed, for all practical purposes it’s going to be tough to make the argument. Even if an employer can make the argument, it could be claimed to be pretext during the trial itself. Or it could be shown that the federal standard didn’t actually require the discriminatory act in question and that the federal law could have been met in another way that was not discriminatory. There are usually ways to stay in ADA compliance without compromising safety.
For more information on maintaining both OSHA and ADA compliance, order the webinar recording of “ADA vs. Safety: Don’t Let Safety Policy Undermine Disability Accommodations.” To register for a future webinar, visit http://store.blr.com/events/webinars.
Tiffani H. Casey, Esq. is an associate in the Atlanta office of Fisher & Phillips, LLP. She advises employers in OSHA recordkeeping, hazard assessment and self-audits, corporate-wide safety compliance, maintaining effective safety training and safety management programs, disciplining unsafe employees, inspection preparedness, workplace violence prevention, and health and wellness initiatives.