An Administrator's Guide to California Private School Law

Chapter 9 – Interactive Process: Employees and Students

direct threat, the school must determine whether reasonable accommodation would eliminate the risk or reduce it to an acceptable level. The school may refuse to hire an applicant with a disability or may discharge an employee with a disability, if either poses a direct threat if a reasonable accommodation is not possible. 1572 2. H OW T O D ETERMINE I F T HERE I S A T HREAT The employee must pose a “significant” risk and not merely an “elevated risk of injury.” 1573 Thus, an individual need not prove that he or she poses no risk. Schools must make the determination of whether an individual poses a significant risk to others on a case-by-case basis, based on the following factors: 1574  The duration of the risk;  The nature and severity of the potential harm;  The likelihood that the potential harm will occur; and  The imminence of the potential harm. 1575 3. R ELY O N O BJECTIVE F ACTS A school must use objective and factual evidence to weigh these factors rather than relying on subjective perceptions or stereotypes. 1576 Factual or relevant evidence may include input from the disabled individual, the experience of the individual in a previous, similar position, and opinions of medical doctors, rehabilitation counselors, or physical therapists who have expertise in the disability at issue.

4. H EALTH A ND S AFETY I SSUES U NDER FEHA There are three elements to the health and safety defense under FEHA:

 The inability of the individual with the impairment to perform the essential duties of the position after reasonable accommodation has been made;  Danger to the health or safety of the disabled individual; and  Danger to the health or safety of others. 1577 Note: All reasonable accommodations must be made before determining whether the individual cannot perform the job without creating health or safety concerns. Reasonable accommodations are any improvements that an employer can make to remove dangers to the position that allow the disabled employee to safely continue working. 1578

An employer must show “imminent and substantial degree of risk” to present this defense. 1579 An employer cannot use a speculative, potential harm as the basis of a safety concern. 1580

An Administrator’s Guide to California Private School Law ©2019 Liebert Cassidy Whitmore 355