Terminating the Employment Relationship

B. D EFENSES TO A CCOMMODATION : H EALTH AND S AFETY , AND U NDUE H ARDSHIP

1. D IRECT T HREAT TO H EALTH AND S AFETY – ADA/FEHA An employer is not obligated to continue to employ or accommodate a qualified individual with a disability who poses a direct threat to the health and safety of himself or herself, or other individuals in the workplace. A “direct threat” is a significant risk to the health and safety of a qualified individual with a disability or others that cannot be eliminated with reasonable accommodation. 128 In Chevron v. Echazabal, 129 Chevron denied employment to an applicant with Hepatitis C because the toxic fumes at the oil refinery put his health at risk. The employee argued that he should be able to choose whether to accept the health risk. The United States Supreme Court held that Chevron need not hire an applicant where the job would pose a threat to the health and safety of the applicant, concluding that the EEOC’s regulation expanding the defense as to the applicant/employee (not merely others at the worksite) was within its authority under the ADA. On remand, the Ninth Circuit Court of Appeals reversed the District Court’s summary judgment ruling in favor of Chevron, finding that questions of material fact remained as to whether Echazabal would be a threat to himself in the desired position. An employer may refuse to hire an individual with a disability such as narcolepsy (one who frequently and unexpectedly loses consciousness) for a position whose essential functions are to work with dangerous equipment. 130 Note that even if an individual poses a direct threat to him/her or others, the employer must determine whether a reasonable accommodation would eliminate the risk or reduce it to an acceptable level. An employer may refuse to hire an applicant with a disability or may discharge an employee with a disability, where a reasonable accommodation is not possible and the individual poses a direct threat to the health/safety of himself/herself or others. 131 a. How to Determine If There Is a Threat An employee poses a threat to the health/safety of himself/herself or others where a “significant” risk, not merely an “elevated risk of injury” exists. 132 Thus, an individual need not prove that he/she poses no risk. The determination of whether an individual poses a significant risk to himself/herself or others must be made on a case-by-case basis, based on the following factors: 133 The EEOC Regulations provide the following example:

Duration of the risk;

Nature and severity of the potential harm;

Likelihood that the potential harm will occur; and

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 49