Monday, June 27, 2011

Employee having a disability that poses a danger to co-workers is not “qualified” within the meaning of the ADA


Employee having a disability that poses a danger to co-workers is not “qualified” within the meaning of the ADA
Hutton v Elf Atochem North America, Inc., 273 F.3d. 884

According to the Hutton decision by the U.S. Circuit Court of Appeals for the Ninth Circuit, an individual with a disability who is shown to pose a danger to co-workers and others is not a “qualified individual” within the meaning of the Americans With Disabilities Act.

Norman Hutton, a diabetic, complained that Elf Atochem discriminated against him because of his disability in violation of the ADA and Oregon's disability discrimination law, [Oregon Revised Statutes, Sections 659.405 and 659.436 (1999).

Elf manufactures chlorine and related chemical products and had hired Hutton in 1986 with the knowledge that he had been diagnosed as a Type I diabetic. During his employment at Elf Hutton had a number of diabetic episodes. On one occasion he went into insulin shock while he was pumping chlorine from the storage tanks and had difficulty communicating with his co-workers.

Elf attempted to resolve the situation by having Hutton agree to meet specified conditions in order to continue his employment. These included his remaining under the care of a physician, providing evidence of a medical examination and laboratory blood assessment to Elf on a periodic basis; maintain a daily log related to his diet, his insulin intake, and certain other activities; monitor his blood sugar levels and to regulate his insulin intake in accordance the recommendations of a physician.

Hutton did not fully cooperate and ultimately he was suspended subject to his complying with the elements set out in the agreement. He sued, only to have a federal district court find that he was not a “qualified person with a disability” under the ADA. The court said that Hutton had failed to produced evidence demonstrating that he was able, with or without an accommodation, to perform the essential functions of his position -- chlorine finishing operator position.

In making its determination the court found that Hutton's diabetes created a risk of significant harm to himself and others, thereby disqualifying him from the position.

The Circuit Court agreed in part, holding that Elf's “direct threat” defense was valid insofar as his posing a threat to co-workers was concerned. It said that such a defense is permitted under the ADA, citing the “Defenses” section of the law.

The Equal Employment Opportunity Commission [EEOC] sets out the following guidelines concerning “direct threat” for the purposes of the ADA: Direct Threat means 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.

The court rejected EEOC's view that the direct threat defense is available to an employer with respect to its contention that the individual poses a safety risk to himself or herself. In contrast, the Ninth Circuit said that where, as in Hutton's situation, there is no dispute that a significant physical or mental lapse by Hutton as a result of a diabetic episode could result in substantial harm to his co-workers and others, the direct threat defense was available to Elf.

Whether or not an individual poses a “direct threat” to others is to be determined on the basis of an individualized assessment of the individual's present ability to safely perform the essential functions of the job supported by a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.

Among the factors to be considered in making such a determination:

1. The duration of the risk;

2. The nature and severity of the potential harm;

3. The likelihood that the potential harm will occur; and

4. The imminence of the potential harm.

Since a claim of “direct threat” is an affirmative defense, the employer bears the burden of proving that an employee constitutes a direct threat.

In Hutton's case there was no dispute that his employment posed some risk of potential harm to others. Was this risk of a sufficient magnitude and probability to disqualify Hutton from the chlorine finishing operator position?

Finding that an individualized assessment of each factor in the EEOC's four-factor test supports the conclusion that Hutton would pose a direct threat to his co-workers and others, the court sustained the lower court's dismissal of Hutton's complaint.

The court ruled that Elf had met the “direct threat” test established by EEOC with respect to Hutton's co-workers and other by demonstrating that (1) the duration of the risk would exist for as long as Hutton held the chlorine finishing operator's job; (2) the nature and severity of the potential harm is catastrophic -- many lives could be lost; (3) although the likelihood that the potential harm will occur is small, whether and when it will occur cannot be predicted; and (4) the imminence of the potential harm is unknown because of the unpredictability of Hutton's condition.

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