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Virtually all employers have to think about employee safety and
preventing risks of injury. Yet while employers and government
agencies such as OSHA focus on safety, employees — and
sometimes even their doctors — incredibly seem to take a
cavalier approach in the face of seemingly obvious safety risks. In
light of this, what can, and potentially should, an employer
do?Consider the following: An employee works at a furniture plant,
where all positions involve the use of lumber-cutting tools. The
employee severely cuts himself and goes to the hospital. When he
returns to work, he has a medical slip from his doctor noting the
employee has severe hemophilia but releasing employee to work
without restrictions. The employer instantly wonders how the doctor
could release the employee to work and how he or she can, in good
conscience, allow the employee to resume working a job that is a
severe danger to the employee's well-being. However, the
employer also knows that refusing to allow the employee to resume
working means a risk of a disability discrimination claim. In this
situation, the employer is seemingly caught between the proverbial
rock and a hard place.
The "direct threat" provisions of the Americans with
Disabilities Act do recognize the challenges created by an example
such as this. The statute permits an employer to require a medical
evaluation and, in some cases, even require a second medical
opinion when the employer has a good-faith belief based on
legitimate, objective evidence that the employee poses a direct
threat to the health and safety of himself or others. As the EEOC
has written in a "Questions and Answers" guidance
document, "The employer is responsible for assessing whether
an employee poses a direct threat based on a reasonable medical
judgment that relies on the most current medical knowledge and/or
best objective evidence." As a result, an employer may be able
refuse to place an employee in a position where performing the
essential functions of the position poses a direct threat (assuming
the risks cannot be eliminated or reduced by reasonable
accommodation) because, in such circumstances, the employee is not
a "qualified individual" and thus is not subject to the
ADA's protections.
However, just because an employer can sometimes require a
medical examination under the ADA's "direct threat"
provisions does not necessarily mean it should do so — at
least not before seeking appropriate guidance. For example, using
the situation above, the EEOC believes the employer could only seek
a second medical opinion if the medical information provided by the
employee is insufficient, not credible, or fraudulent, and only
after first providing the employee with an opportunity to address
those concerns. The employer probably has no knowledge of whether
the employee disclosed the dangerous aspects of his job to the
doctor or whether the doctor is a specialist capable of fully
assessing the risks posed by the employee's job. Accordingly,
rather than immediately requiring another medical assessment, the
employer might consider requesting that the employee grant the
employer permission to speak to the doctor to seek clarification
about the reasons for releasing employee as well as other pertinent
information to assess the nature of the risks posed by the
employee's job.
The takeaway is that an employer need not necessarily allow an
employee to work in a job where the employee's unique
circumstances implicate serious health risks. However, any time an
employer believes a "direct threat" issue may exist, the
employer is encouraged seek guidance from counsel on how to
approach the situation so that, by taking steps intended to promote
employee safety, the employer does not unintentionally run afoul of
the ADA.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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