The “Direct Threat” Defense when Withdrawing a Job Offer or Terminating an Existing Employee

WorkSaver Physical Ability Tests (PATs) are based on validated essential functions of a job and establishes pass/fail criteria at the “Direct Threat” level. The direct threat defense permits the employer to withdraw an offer of hire or legally terminate an employee when there is a medical condition, physical impairment and/or disability that poses a direct threat to self, coworkers and/or the public. The phrase “direct threat” is defined as a significant risk of substantial harm to the health or safety of others that cannot be eliminated or reduced by reasonable accommodation.

When an employer refuses to hire or terminates an existing employee by invoking the “direct threat” defense under the Americans with Disabilities Act (ADA), certain criteria must be met. To determine whether an employee poses a direct threat, an employer is required to conduct an individualized assessment of the employee’s present ability to safely perform the essential functions of the job with consideration to the duration of the risk and the nature, severity, likelihood, and imminence of any potential harm. This is the primary purpose of the WorkSaver PAT which provides objective information supported by medical evidence to determine that a disabled employee poses a direct threat.

Below are some tips derived and modified from a blog written by William Brian London, attorney with Fisher and Phillips, to help ensure your company will withstand scrutiny of the direct threat defense when there is a decision to not hire or terminate an employee because of safety concerns:

1. Seek Out the Experts. When choosing a medical provider to evaluate an employee’s ability to safely perform the essential functions of their job, seek out someone with specific expertise. The WorkSaver PAT provides employers with an objective, validated analysis that will support any decision that indicates a person is physically unable to safely perform the essential demands of the job and presents a direct threat of harm to self and possibly others.

2. Acquire an Appropriate Medical Opinion when Needed. If a medical condition is thought to prohibit a safe analysis of functional abilities as conducted by WorkSaver Systems, then a referral to a medical doctor or other qualified healthcare provider (HCP) may be needed to diagnose and/or resolve the medical condition prior to further testing for job placement. The Equal Employment Opportunity Commission (EEOC) has published Interpretive Guidance suggesting employers should specifically seek out the “opinions of medical doctors, rehabilitation counselors, and/or physical therapists who have expertise in the disability involved and/or direct knowledge of the individual with the disability.”

3. No Cherry Picking. Always allow a complete, in-person examination of the employee, rather than requesting a medical opinion based solely on documents or cherry-picked information you provide to a healthcare provider.

4. Avoid Speculation and Validate Inability to Work Safely. The EEOC’s Interpretive Guidance states that you should identify the specific risk posed by the employee, or the specific behavior on the part of the employee that would pose a direct threat. A WorkSaver PAT is perfect for objectively identifying any functional deficits as they relate to performing the essential functions of a job safely. The WorkSaver PAT eliminates guesswork and speculation that is too often rendered by a healthcare provider that does not conduct job-specific validated functional tests.

5. Document Work Behaviors that Evoke Concern for Incumbent Employees. When there is concern about an incumbent employee’s ability to work safely, the employer should document specific examples of any behavior or behaviors on the job that create a safety risk. Avoid speculation as to what could or may happen in a worst-case scenario. The EEOC makes clear that there should be a “high probability of substantial harm” for an employer to establish a direct threat defense. A WorkSaver PAT “for cause” can be legally required for incumbent employees who demonstrate behaviors that cause concern about safety. The WorkSaver Physical Ability Test can help identify medical issues and quantify functional deficits that can be provided to an HCP and employer for determination of work capacity and any need for work accommodations.

6. Provide Solid Information to the Healthcare Provider (HCP). Employers should be sure to provide the HCP with a current job description (preferably a validated functional job description identifying essential job demands as provided by WorkSaver) and any relevant information about the workplace and employee’s work history. A medical doctor or any other type of HCP cannot provide a meaningful “individualized assessment” of the employee’s ability to safely perform their job without access to accurate and up-to-date information about work duties and the environment. Employers should remember that a medical clearance to return to work does not always translate into safe functional clearance to return to work. As such, it is highly advisable, once the employee has been medically cleared to return to work, that a job-specific PAT, as provided by WorkSaver Systems, be required prior to return to work in order to validate that the employee can safely perform the essential functions of the job. This is particularly valuable when the employee has been away from the job for a significant amount of time and/or has received medical treatment, either of which may have caused weakness, reduced aerobic capacity, or other changes in fitness that could reduce the capacity to work safely.

7. Consider Possible Reasonable Accommodations. Don’t forget that determining whether an employee’s disability creates a safety risk is only step one in the direct threat analysis. You must also consider whether there are any reasonable accommodations that could eliminate or reduce the risk to an acceptable level without creating an undue hardship. To help determine proper accommodations, the employer can consult with WorkSaver Systems and/or other HCPs.

For more information, call WorkSaver Systems at (800) 414-2174 or e-mail dr.bunch@worksaversystems.com or trevor@worksaversystems.com