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Chapter IV: Establishing Nondisciminatory Qualification Standards And Selection Criteria

4.5 Standards Necessary for Health and Safety: A "Direct Threat"

An employer may require as a qualification standard that an individual not pose a "direct threat" to the health or safety of the individual or others, if this standard is applied to all applicants for a particular job. However, an employer must meet very specific and stringent requirements under the ADA to establish that such a "direct threat" exists.

The employer must be prepared to show that there is:

  • significant risk of substantial harm
  • the specific risk must be identified
  • it must be a current risk, not one that is speculative or remote
  • the assessment of risk must be based on objective medical or other factual evidence regarding a particular individual; and
  • even if a genuine significant risk of substantial harm exists, the employer must consider whether the risk can be eliminated or reduced below the level of a "direct threat" by reasonable accommodation.
  • Looking at each of these requirements more closely:

    1. Significant risk of substantial harm

    An employer cannot deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The employer must be prepared to show that there is a significant risk, that is, a high probability of substantial harm, if the person were employed.

    The assessment of risk cannot be based on mere speculation unrelated to the individual in question.

    For example: An employer cannot assume that a person with cerebral palsy who has restricted manual dexterity cannot work in a laboratory because s/he will pose a risk of breaking vessels with dangerous contents. The abilities or limitations of a particular individual with cerebral palsy must be evaluated.

    2. The specific risk must be identified

    If an individual has a disability, the employer must identify the aspect of the disability that would pose a direct threat, considering the following factors: the duration of the risk.

    For example: An elementary school teacher who has tuberculosis may pose a risk to the health of children in her classroom. However, with proper medication, this person's disease would be contagious for only a two-week period. With an accommodation of two-weeks absence from the classroom, this teacher would not pose a "direct threat."

    the nature and severity of the potential harm.

    For example: A person with epilepsy, who has lost consciousness during seizures within the past year, might seriously endanger her own life and the lives of others if employed as a bus driver. But this person would not pose a severe threat of harm if employed in a clerical job.

    the likelihood that the potential harm will occur.

    For example: An employer may believe that there is a risk of employing an individual with HIV disease as a teacher. However, it is medically established that this disease can only be transmitted through sexual contact, use of infected needles, or other entry into a person's blood stream. There is little or no likelihood that employing this person as a teacher would pose a risk of transmitting this disease.

    the imminence of the potential harm.

    For example: A physician's evaluation of an applicant for a heavy labor job that indicated the individual had a disc condition that might worsen in 8 or 10 years would not be sufficient indication of imminent potential harm.

    If the perceived risk to health or safety arises from the behavior of an individual with a mental or emotional disability, the employer must identify the specific behavior that would pose the "direct threat".

    3. The risk must be current, not one that is speculative or remote

    The employer must show that there is a current risk -- "a high probability of substantial harm" -- to health or safety based on the individual's present ability to perform the essential functions of the job. A determination that an individual would pose a "direct threat" cannot be based on speculation about future risk. This includes speculation that an individual's disability may become more severe. An assessment of risk cannot be based on speculation that the individual will become unable to perform a job in the future, or that this individual may cause increased health insurance or workers compensation costs, or will have excessive absenteeism. (See Insurance, Chapter VII .,and Workers' Compensation, Chapter IX .)

    4. The assessment of risk must be based on objective medical or other evidence related to a particular individual

    The determination that an individual applicant or employee with a disability poses a "direct threat" to health or safety must be based on objective, factual evidence related to that individual's present ability to safely perform the essential functions of a job. It cannot be based on unfounded assumptions, fears, or stereotypes about the nature or effect of a disability or of disability generally. Nor can such a determination be based on patronizing assumptions that an individual with a disability may endanger himself or herself by performing a particular job.

    For example: An employer may not exclude a person with a vision impairment from a job that requires a great deal of reading because of concern that the strain of heavy reading may further impair her sight.

    The determination of a "direct threat" to health or safety must be based on a reasonable medical judgement that relies on the most current medical knowledge and/or the best available objective evidence. This may include:

    Where the psychological behavior of an employee suggests a threat to safety, factual evidence of this behavior also may constitute evidence of a "direct threat." An employee's violent, aggressive, destructive or threatening behavior may provide such evidence.

    Employers should be careful to assure that assessments of "direct threat" to health or safety are based on current medical knowledge and other kinds of evidence listed above, rather than relying on generalized and frequently out-of- date assumptions about risk associated with certain disabilities. They should be aware that Federal contractors who have had similar disability nondiscrimination requirements under the Rehabilitation Act have had to make substantial backpay and other financial payments because they excluded individuals with disabilities who were qualified to perform their jobs, based on generalized assumptions that were not supported by evidence about the individual concerned.

    Examples of Contractor Cases: A highly qualified experienced worker was rejected for a sheet metal job because of a company's general medical policy excluding anyone with epilepsy from this job. The company asserted that this person posed a danger to himself and to others because of the possibility that he might have a seizure on the job. However, this individual had been seizure-free for 6 years and co- workers on a previous job testified that he carefully followed his prescribed medication schedule. The company was found to have discriminated against this individual and was required to hire him, incurring large back pay and other costs. An applicant who was deaf in one ear was rejected for an aircraft mechanic job because the company feared that his impairment might cause a future workers' compensation claim. His previous work record gave ample evidence of his ability to perform the aircraft mechanic job. The company was found to have discriminated because it provided no evidence that this person would have been a danger to himself or to others on the job. An experienced carpenter was not hired because a blood pressure reading by the company doctor at the end of a physical exam was above the company's general medical standard. However, his own doctor provided evidence of much lower readings, based on measurements of his blood pressure at several times during a physical exam. This doctor testified that the individual could safely perform the carpenter's job because he had only mild hypertension. Other expert medical evidence confirmed that a single blood pressure reading was not sufficient to determine if a person has hypertension, that such a reading clearly was not sufficient to determine if a person could perform a particular job, and that hypertension has very different effects on different people. In this case, it was found that there was merely a slightly elevated risk, and that a remote possibility of future injury was not sufficient to disqualify an otherwise qualified person. (Note that while it is possible that a person with mild hypertension does not have an impairment that "substantially limits a major life activity," in this case the person was excluded because he was "regarded as" having such an impairment. The employer was still required to show that this person posed a "direct threat" to safety.)

    "Direct Threat" to Self

    An employer may require that an individual not pose a direct threat of harm to his or her own safety or health, as well as to the health or safety of others. However, as emphasized above, such determinations must be strictly based on valid medical analyses or other objective evidence related to this individual, using the factors set out above. A determination that a person might cause harm to himself or herself cannot be based on stereotypes, patronizing assumptions about a person with a disability, or generalized fears about risks that might occur if an individual with a disability is placed in a certain job. Any such determination must be based on evidence of specific risk to a particular individual.

    For example: An employer would not be required to hire an individual disabled by narcolepsy who frequently and unexpectedly loses consciousness to operate a power saw or other dangerous equipment, if there is no accommodation that would reduce or eliminate the risk of harm. But an advertising agency could not reject an applicant for a copywriter job who has a history of mental illness, based on a generalized fear that working in this high stress job might trigger a relapse of the individual's mental illness. Nor could an employer reject an applicant with a visual or mobility disability because of a generalized fear of risks to this person in the event of a fire or other emergency.

    5. If there is a significant risk, reasonable accommodation must be considered

    Where there is a significant risk of substantial harm to health or safety, an employer still must consider whether there is a reasonable accommodation that would eliminate this risk or reduce the risk so that it is below the level of a "direct threat."

    For example: A deaf bus mechanic was denied employment because the transit authority feared that he had a high probability of being injured by buses moving in and out of the garage. It was not clear that there was, in fact, a "high probability" of harm in this case, but the mechanic suggested an effective accommodation that enabled him to perform his job with little or no risk. He worked in a corner of the garage, facing outward, so that he could see moving buses. A co-worker was designated to alert him with a tap on the shoulder if any dangerous situation should arise.

    "Direct Threat" and Accommodation in Food Handling Jobs

    The ADA includes a specific application of the "direct threat" standard and the obligation for reasonable accommodation in regard to individuals who have infectious or communicable diseases that may be transmitted through the handling of food.

    The law provides that the U.S. Department of Health and Human Services (HHS) must prepare and update annually a list of contagious diseases that are transmitted through the handling of food and the methods by which these diseases are transmitted.

    When an individual who has one of the listed diseases applies for work or works in a job involving food handling, the employer must consider whether there is a reasonable accommodation that will eliminate the risk of transmitting the disease through handling of food. If there is such an accommodation, and it would not impose an undue hardship, the employer must provide the accommodation.

    An employer would not be required to hire a job applicant in such a situation if no reasonable accommodation is possible. However, an employer would be required to consider accommodating an employee by reassignment to a position that does not require handling of food, if such a position is available, the employee is qualified for it, and it would not pose an undue hardship.

    In August 1991, the Centers for Disease Control (CDC) of the Public Health Service in HHS issued a list of infectious and communicable diseases that are transmitted through handling of food, together with information about how these diseases are transmitted. The list of diseases is brief. In conformance with established medical opinion, it does not include AIDS or the HIV virus. In issuing the list, the CDC emphasized that the greatest danger of food-transmitted illness comes from contamination of infected food-producing animals and contamination in food processing, rather than from handling of food by persons with infectious or communicable diseases. The CDC also emphasized that proper personal hygiene and sanitation in food-handling jobs were the most important measures to prevent transmission of disease.

    The CDC list of diseases that are transmitted through food handling and recommendations for preventing such transmission may be obtained from your regional DBTAC.