Terminating the Employment Relationship

An e mployer must show “imminent and substantial degree of risk” to rely on this defense. 155 An employer cannot rely upon a speculative, potential harm as the basis of a safety concern. 156

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. 157 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 to the emp loyee’s individual abilities and work history. This information is then used to legitimize the employer’s safety concern. For example, courts have recognized a safety concern and have applied this defense in FEHA cases of obese employees seeking employment as: (1) a fire department ambulance driver, 158 and 2) a fire department paramedic. 159 In both cases, the courts relied upon statistical data indicating that obesity compromised the individual’s ability to perform necessary functions.

3. U NDUE H ARDSHIP D EFENSE – ADA/FEHA

a. ADA Undue hardship is a defense under the ADA to the obligation to reasonably accommodate a qualified individual with a disability. No accommodation is required if it will impose an undue hardship on the employer. 160

“Undue hardship” is any action requiring significant difficulty or expense on the part of the employer, measured under the following factors:

Nature and cost of the accommodation needed;

Overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expense and resources, or the impact of such accommodation upon the operation of the facility; The overall financial resources of the covered entity; the overall size of the business of the covered entity with respect to the number of its employees; the number, type and location of its facilities; The type of operation or operations of the covered entity, including the composition, structure, and functions of the work force of such entity; the geographic separateness, administrative or fiscal relationship of the facility or facilities in question, to the covered entity;

The terms of the collective bargaining agreement, if applicable and relevant; and

Whether the work site involved is a temporary or permanent one, and whether the accommodation would require violation of the employer’s civil service rules. 161

Terminating the Employment Relationship ©2022 (s) Liebert Cassidy Whitmore 53