Terminating the Employment Relationship

Imminence of the potential harm. 134

b. Rely on Objective Facts When making a determination on whether an employee poses a threat to the health/safety of himself/herself or others, an employer must use objective and factual evidence to weigh these factors, rather than rely on subjective perceptions or stereotypes. 135 Factual or relevant evidence may include input from the disabled individual, the experience of the individual in a previous similar position, and opinions of medical doctors, rehabilitation counselors, or physical therapists who have expertise regarding the disability. c. Do Not Rely on Fear or Stereotypes When making a determination on whether an employee poses a threat to the health/safety of himself/herself or others, an employer may not rely on a generalized fear about a condition or aspects of the employment environment. For example, a law firm may not reject an applicant with a history of a disabling mental illness based on a generalized fear that the stress of endeavoring to make partner may trigger a relapse of the mental illness. Nor may an employer take into account generalized fears about individuals with a disability in the event of an evacuation or other emergency. 136 The Ninth Circuit Court of Appeals clarified the standard for establishing that business necessity justifies excluding a class of individuals with disabilities from a certain position. In Bates v. United Parcel Service, Inc., 137 UPS required drivers of package trucks to pass a Department of Transportation hearing test that did not apply to all of the package trucks at issue. UPS argued that the exclusion of drivers who were unable to pass the test was justified by business necessity, namely safety. The Court held that employers seeking to exclude persons with certain disabilities from positions based on safety reasons must prove either: (1) that substantially all of the excluded individuals with the disability present a higher risk than individuals without the disability; or (2) that no practical criteria exist to determine which individuals with the disability present a heightened risk and which do not. The legislative history of the ADA indicates that Congress intended to protect individuals with AIDS. Hence, it is unlikely that employers could successfully argue that simply because an individual has AIDS, s/he poses a direct threat to the health or safety of others. This position may have merit if the position includes a risk of exchanging body fluids. Health care employers, especially those engaged in invasive procedures, should keep abreast of current legislation as proposals are being made which affect these persons. Diseases : The Department of Health and Human Services (“DHHS”) prepares a list of infectious and communicable diseases that are transmitted through handling food. 138 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.

Terminating the Employment Relationship ©2019 (s) Liebert Cassidy Whitmore 50