Terminating the Employment Relationship

Diseases : The Departmen t of Health and Human Services (“DHHS”) prepares a list of infectious and communicable diseases that are transmitted through handling food. 146 Employers may be able to refuse to employ or reassign persons with any of these diseases if it cannot reasonably accommodate the transmission risk. The fact that a disease is on the list does not automatically make it one that is protected under the ADA. A case-by-case analysis must be made to determine whether or not it is protected and whether accommodation is possible. Mental Illness : An employer must identify a specific behavior posing a direct threat to disqualify a mentally ill individual. 147 A history of psychiatric disability or treatment for psychiatric disability does not create a “direct threat.” 148 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. 149 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. 150 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 the individual’s 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. 151 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. 152 T he nature and severity of the individual’s side effects;

2. H EALTH AND S AFETY I SSUES U NDER FEHA There are three elements 153 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. 154

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 52