ADAAA: Direct Threat, Fitness for Duty, Pregnancy, and other Legal Minefields

Janet Strevel Hayes 865-546-4646 jhayes@lewisthomason.com * Materials prepared by Chris McCarty

A person is protected by the ADA if … 1) Actually disabled 2) Record of disability, or 3) Regarded as having a disability

Disability… Physical or Mental Impairment that substantially limits one or more major life activities

Common Disability Categories: Spinal Condition Mental Health Neurological Issue Extremity Problem Heart Problem Substance Abuse Diabetes Diagnosis Hearing Impairment Vision Impairment Blood Disorder

ADAAA… Expanded the definition of major life activity (includes thinking, learning, cell growth, immune system functioning) Clarified that impairments that are episodic or in remission can be a disability Overturned prior law regarding consideration of mitigating measures

After identifying… Accommodate Reasonable accommodation may include, but is not limited to: Making existing facilities readily accessible and usable Modifying a schedule or reassigning to a vacant position Acquiring equipment, adjusting training materials/policies, or providing qualified readers or interpreters

The “Direct Threat” Exception … An employer may exclude someone from a job if that person would pose a “direct threat” to health or safety. ~ 42 U.S.C. 12113

But… When an employer wants to exclude someone for safety-related reasons, that employer must be prepared to show the person posed a “direct threat.” (In other words… It’s the employer’s burden.)

“Direct Threat” / EEOC Definition: “A significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”

“Direct Threat” Checklist: Duration of risk Nature/severity of potential harm Likelihood of potential harm Imminence of potential harm ~ 29 C.F.R. 1630.2(r)

Direct threats usually look like this guy. 

What do courts want to see? Experts Employers “should be protected when they make objectively reasonable assessments, recognizing, of course, that objective reasonableness may well depend on whether professional advice is obtained.” ~ Jarvis v. Potter, 500 F.3d 1113 (10th Cir. 2007)

The Fitness for Duty Examination: A disability-related inquiry or medical examination of an employee may be "job-related and consistent with business necessity" when an employer "has a reasonable belief… an employee will pose a direct threat due to a medical condition.” ~ EEOC Enforcement Guidance: Disability Related Inquiries and Medical Examinations http://www.eeoc.gov/policy/docs/guidance-inquiries.html#N_40_

Reasonable Belief ≠ Irrational Fear Must be based on objective, factual evidence - not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes - about the nature or effect of a particular disability, or of disability generally.

Situation A: Employee operates a bulldozer weighing several tons in and around a crowded job site. While driving one day, Employee blacks out. He later tells Boss that this is not the first time. Could you request a fitness for duty exam?

Situation B: Employee starts sending late-night texts and e-mails to Boss, some containing horror movie images and others containing gibberish. When confronted, Employee at first says he cannot remember and then becomes evasive. Could you request a fitness for duty exam?

Situation C: Employee works in the produce department of a large grocery store. She is required to wear protective gloves at all times. Employee informs Boss that she is HIV-positive. Could you request a fitness for duty exam?

3 Things to Remember: Safety outweighs all things Defer to the experts Objectivity is the key

What about periodic medical exams? Allowed in limited circumstances Positions affecting public safety Narrowly tailored to address job-specific concerns

Situation A: A fire department requires firefighters to have a comprehensive visual examination every two years and an annual electrocardiogram. Permissible or not?

Situation B: A private security company requires armed security officers to have periodic blood pressure screenings and stress tests. Permissible or not?

Situation C: A police department periodically tests officers to determine whether they are HIV positive. Permissible or not?

Pregnancy and the ADAAA … Pregnancy alone = not a disability Pregnancy with a complication = disability that requires accommodation

March 2015 Young v. UPS, United States Supreme Court (interpreting Pregnancy Discrimination Act) Issue: If an employer provides light duty to an employee injured on the job, must the employer accommodate pregnant employees in the same manner? Opinion: No, but yes … sorta

June 25, 2015 – EEOC Enforcement Guidance Pregnancy complications can be a “disability” Rely on experts … do not assume a disability (avoid paternalism) Always consider potential “reasonable accommodations” Avoid EEOC scrutiny

Questions or Comments? Lewis, Thomason, King, Krieg & Waldrop, P.C. One Centre Square, 5th Floor Post Office Box 2425 Knoxville, TN 37901 Fax: 865-523-6529 Phone: 865-546-4646 *The contents of this presentation are for informational purposes and should not be considered legal advice. This presentation does not establish an attorney-client relationship.