A frequent call we receive from members here at NAE involves the topic of direct threat under the Americans with Disabilities Act (ADA). These situations usually arise because an employer has a concern that an employee with a disability may pose a safety risk to themselves or others. Employers will reach out for guidance on how to keep everyone safe in the workplace while avoiding any issues with nondiscrimination laws.
The ADA has actually provided an answer to this situation.
Under the law, if an employee is creating a safety risk and they also happen to have a disability, an employer is allowed to go through a process to determine whether a direct threat exists. A direct threat is a narrow and legally defined defense that employers may rely on only when an employee’s disability-related condition creates a significant risk of substantial harm, either to the employee or to others, that cannot be eliminated or reduced through reasonable accommodation.
The Federal Regulations, specifically 29 C.F.R. § 1630.2(r), require employers to assess whether a direct threat exists through an objective, fact-based, and individualized assessment.
Elements of Direct Threat
There is a significant risk of substantial harm.
For this element to be met under the ADA, the risk of harm must be significantly likely to occur (meaning highly probable to occur, not just more likely), and the amount of potential harm must be substantial, and not just minor. If these two conditions are not clearly met, then the situation would not qualify as a direct threat.
Even if the risks involved do not meet these conditions, an employer should address them with the employee and consider any and all reasonable accommodations that can help lessen the risks. Nevertheless, if this element is not met, an employer cannot use direct threat as a basis to terminate or remove an employee from a position.
Identify the specific risk involved.
Generalized fear, concerns, or assumptions that an employee would pose a safety risk due to having a disability or fears of safety due to simply having a disability, is not sufficient to meet this element of direct threat. An employer must be able to identify the specific risk and how the employee’s disability impacts that risk. If an employer cannot identify a specific risk, then there is no direct threat.
Risk must be current, not speculative or remote.
Many employers encountering these situations tend to look into the future and focus on how an employee’s health could deteriorate over time. However, the ADA does not permit future speculation when determining whether there is a direct threat.
An employer must focus on the present situation and the employee’s current medical condition when making a direct threat determination. There is no way to know with any certainty whether the employee’s disability will get worse in the future, or if it will remain the same or get better with time.
The assessment must only take into account the reality that is present at the time the assessment is being done.
Assessment must be based on objective medical or other factual evidence.
To establish a direct threat, it is important to have objective medical evidence or other factual evidence regarding the employee.
While medical documentation regarding the employee’s disability might be considered the best objective evidence regarding whether they pose a direct threat, an employer should take steps to obtain the best available objective evidence. Employers can examine other employee-specific information, including but not limited to how the employee performed in their previous job and how their disability-related needs were previously handled.
When making a direct threat determination, medical information and other factual evidence should be reviewed in the context of the specific employee and their job.
Can the risk be eliminated or reduced by a reasonable accommodation?
If all other elements have been met to establish a direct threat, an employer should still evaluate ways to reduce the threat by implementing reasonable accommodations.
If a reasonable accommodation can reduce the direct threat to a manageable level, then there is no longer a direct threat. Because of the reasonable accommodation, the risk is no longer significantly likely to occur and cause substantial harm if it were to happen. Therefore, direct threat cannot be used as a reason for an employee’s removal from their job.
Concluding Thoughts
Employers must remember that the ADA is designed to support the employment of individuals with disabilities. The direct threat defense is not an easy “out” for employers to remove employees with disabilities. Instead, it should be viewed as what it is – a specific legal defense that can be used only in limited situations involving real, significant safety risks.
Navigating concerns about workplace safety when an employee has a disability can be challenging, but the ADA provides a clear process to follow. The direct threat analysis protects not only the safety of everyone in the workplace but also the rights and dignity of employees with disabilities under the ADA.
By: Cara Sheehan, Esq.
