Terminating the Employment Relationship

Mental Illness : An employer must identify a specific behavior posing a direct threat to disqualify a mentally ill individual. 139 A history of psychiatric disability or treatment for psychiatric disability does not create a “direct threat.” 140 Medication : Use of medication does not automatically create a “direct threat.” For example, a machine operator taking medication does not necessarily pose a direct threat. 141 Whether this individual poses a direct threat must be determined on a case-by-case basis, based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. 142 An employer should consider the following factors when determining whether the use of medication by an employee creates a “direct threat”: How those side effects influence his/her ability to safely operate the machinery; and Whether the individual has had safety problems in the past when operating the same or similar machinery while taking the medication. 143 Reasonable Accommodation : An employer must determine if it can reasonably accommodate any significant risk of a substantial harm. The accommodation is reasonable if it reduces or eliminates the risk such that the employee can perform the essential functions of the job. 144 The nature and severity of the individual’s side effects;

2. H EALTH AND S AFETY I SSUES U NDER FEHA There are three elements 145 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 a reasonable accommodation has been made;

Danger to the health or safety of the disabled individual; and

Danger to the health or safety of others.

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 which an employer can make to remove dangers to the position that allow the disabled employee to safely continue working. 146

An employer must show “imminent and substantial degree of risk” to rely on this defense. 147 An employer cannot rely upon a speculative, potential harm as the basis of a safety concern. 148 Courts evaluate safety issues in two ways. Some courts evaluate the risk based on the individual degree of harm posed by retaining the individual with the disability in the position with an accommodation. 149 Accordingly, a court will compare the employee’s history of successfully completing the essential functions of a position in spite of the impairment, and the employee’s unique and specific skills, with the magnitude and imminence of the risk that the employer fears. Other courts validate the employer’s reliance on the safety defense with statistical data unrelated

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 51