The Americans with Disabilities Act (ADA) prohibits employers from discriminating against someone because of their disability. Under the ADA, an employer is expected to make reasonable accommodations that would allow the employee to perform the essential functions of a job.
Expectations change, however, when an employer can show the employee’s disability poses a “direct threat” to the health and safety of others in the workplace. A direct threat is a risk that cannot be eliminated or reduced by reasonable accommodation.
In the recent case of Pontinen v. U.S. Steel Corp., a federal court ruled in favor of an employer who deemed an employee to be just such a threat. The decision demonstrates there are limits to the protections offered by the ADA.
By way of background, the plaintiff had applied to work at U.S. Steel (USS) and had received a conditional offer of employment. During his fitness-for-duty examination, he revealed he’d had past seizures and had stopped his anti-seizure medication.
Following the disclosure, medical staff working for USS followed up with Russell Pontinen’s doctor and reviewed the doctor’s treatment notes. Using established assessment guidelines, the medical team determined work restrictions for Pontinen. The USS human resources department concluded that those restrictions could not be accommodated, and Pontinen’s offer of employment was rescinded.
Pontinen sued for disability discrimination under the ADA. USS defended its decision using the direct threat claim. A court sided with the defendant, finding that USS’s decision was based on adequate medical evidence.
Takeaways for employers. In making a determination of direct threat, an employer needs to assess the employee or candidate’s ability to safely perform their job, considering the nature, severity, and likelihood of harm. Significantly, a direct threat determination must be supported by medical evidence.
USS had a consistent process for requiring applicants to undergo post-offer, pre-employment testing. In making its assessment, several of USS’s actions helped provide a strong defense:
The direct threat defense is not always successful, and employers can get in trouble for failing to meet a variety of criteria. Employers must follow consistent procedures, demonstrate a high probability of harm, and consider reasonable accommodations when possible.