Privacy Issues in the Workplace

1. E MPLOYERS M AY R EJECT A PPLICANTS W HOSE J OB P ERFORMANCE W OULD E NDANGER THE A PPLICANT OR O THERS The FEHA and the ADA have similar but distinct tests regarding the rejection of applicants whose medical condition or disability endangers the applicant or others. a. The ADA “Direct Threat” Test Under the ADA, an employer may refuse to hire an applicant who poses a direct threat to the health or safety of the applicant or other individuals in the workplace. “Direct threat” means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that an individual poses a “direct threat” should be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment should be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:



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.

b. The FEHA “Safety-of-Others” Test Similar to the ADA’s “direct threat” test, the FEHA permits an employer to refuse to hire an applicant if the applicant, because of his or her disability or medical condition, cannot perform the job’s essential duties without endangering the health or safety of the applicant or the health or safety of others even with reasonable accommodations. Under FEHA, disqualification based upon the threat to an applicant or to others requires an employer to show that the job imposes an imminent and substantial degree of risk to the applicant or to others that cannot be cured by reasonable accommodation. 174

2. C ASE S TUDY ON FEHA “S AFETY -O F -O THERS ” T EST

Equal Employment Opportunity Commission v. United Parcel Service, Inc. 175 Defendant United Parcel Service, Inc. (“UPS”), denied driving positions to certain employees because the employees failed to pass UPS’s “Vision Protocol,” which requires drivers to have some central vision and some peripheral vision in each eye. The employees alleged that UPS had discriminated against them because of their monocular vision, a disability, in violation of the FEHA. The Ninth Circuit found that the employees were sufficiently limited in the major life activities of seeing and working to fall within the FEHA’s broad definition of disability.

Privacy Issues in the Workplace ©2021 (s) Liebert Cassidy Whitmore 61