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.