Is it safe, or not, to let an employee work?

YOUR ELECTED officials and federal agencies in Washington have created a monster with the Americans with Disabilities Act. While well intentioned, it constantly puts employers between a rock and a hard place, and it has created endless job opportunities for human resource specialists and employment lawyers. One particularly difficult area is where the employer believes that a certain job is dangerous.

YOUR ELECTED officials and federal agencies in Washington have created a monster with the Americans with Disabilities Act. While well intentioned, it constantly puts employers between a rock and a hard place, and it has created endless job opportunities for human resource specialists and employment lawyers. One particularly difficult area is where the employer believes that a certain job is dangerous.

In one recent case, the person's medical condition rendered him disabled from holding the job, and, in another case, he still couldn't hold the job because the condition did not render him "disabled." As the Russian-born, Branson, Mo.-based comedian Yakov Smirnoff puts it, "What a country!"

Does an employer have the right to prevent a person from harming himself?

The answer is a qualified "yes." In a court case that went all the way to the U.S. Supreme Court, the decision came down on the side of the employer.

In Chevron U.S.A. Inc. v. Echazabal, 122 S.Ct. 2045 (2002), a contractor's employee applied twice to be hired on directly by Chevron. Each time, a medical exam disclosed a liver condition that would have made it unsafe for him to work around toxic chemicals. After the second exam, Chevron went further and requested that the applicant's employer reassign him to a job somewhere else where he would not be at risk of injury.

The employee sued Chevron, saying that while Chevron might have the right to keep him out if he posed a threat to others, it did not have the right to decide for him what risks he could run with his own health. The ADA's actual language allows an employer to block a person from performing a job if it can show that by performing the job, the person would pose "a direct threat to the health or safety of other individuals in the workplace." 42 U.S.C. §12113(b) (emphasis added). It says nothing about a disability that harms only the employee. That would seem to pretty clearly come down on the employee's side.

But nothing is as simple as it appears in the law. The Supreme Court noted that the law merely mentioned the threat to others as an example of something that "may" qualify as a business necessity, but that it didn't say that there couldn't be other things that would also qualify. It accepted Chevron's argument that keeping Mr. Echazabal out of its plant was necessary to avoid lost time due to sickness; excessive turnover due to medical retirement or death; litigation under state tort law; and possible violations of OSHA.

Echazabal's lawyer characterized this attitude as "paternalistic" and overprotective. The Supreme Court didn't entirely disagree. It went on to say that, in order to avoid stepping over the line, the employer had to show that it was relying on "a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence," and an expressly "individualized assessment of the individual's present ability to safely perform the essential functions of the job." (29 C.F.R. §1630.2(r) (2001).

In fact, in one of those footnotes that only a lawyer could love, Justice David Souter noted that while the line as to how disabling the condition has to be before an employer could disqualify a person from a job was one "for the trial courts."

I would not encourage employers to think that they now have carte blanche to keep people from jobs out of an overabundance of caution. The mere fact that it would take a lawsuit to decide whether the employer was right or wrong in itself should be enough to discourage employers. Although it was not raised as an issue in the Echazabal case, an employer would also have to prove that it could not "reasonably accommodate" the disabled person.

Lack of disability means an employee does not have rights under the ADA.

Another recent decision on a similar issue is Pittari v. American Eagle Airlines Inc. (8th Cir. No. 05-4181/06-2287, 11/9/06), where an airline was allowed to bar a flight attendant temporarily from his regular job while he was taking medication that affected his decision-making ability. In this case, the employee lost because he did not qualify as "disabled" since as soon as he recuperated from his anxiety and depression (which was said to be temporary and not permanent), he could resume his old duties and the airline offered him other jobs in the interim. Because he wasn't "disabled," Mr. Pittari couldn't claim rights under the ADA. But in order to win this case, the airline went through many rounds of extensive neurological testing of Pittari and, of course, a lengthy lawsuit.

As these two decisions illustrate, compliance with the ADA requires a lot of knowledge. Employers who naively think that they need to avoid injuries to the employees themselves or to others need to be cautious in taking action until they lay all the appropriate groundwork.

Susan McGreevy is a partner at Husch & Eppenberger, Kansas City, Mo., telephone 816/421-4800, e-mail to [email protected].

TAGS: Law