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Known disability, safety concern? Testing OK

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in Discrimination and Harassment,Human Resources

Disabled employees may believe that their employers can never insist that they take a test related to the disability. That’s not true.

For example, if an employee has a known disability and is observed making safety-related mistakes, it’s perfectly reasonable to demand an assessment of whether the employee is capable of performing the job.

Recent case: Ross Margherita worked as a FedEx freight handler at Kennedy Airport, where he loaded and unloaded planes. Margherita has a hearing impairment and a speech impediment. Neither disqualified him from doing his job.

But then a supervisor noticed Margherita driving the wrong way and apparently ignoring hand signals and verbal warnings. That prompted FedEx to demand a hearing test and a communications test under field conditions. Margherita had to re­­spond to a series of commands at various distances on a loading ramp. The results were inconclusive.

Following a second test, Margherita went on leave for stress and anxiety. When he returned, he was placed in a position that didn’t require him to use hand or voice commands. He received a raise and his benefits did not change.

He sued anyway, alleging that the tests were illegal under the ADA.

The court disagreed. It said that an employer that knows about a disability and notices safety issues can test the em­­ployee. It’s legal because the testing is designed to assess the ability to carry out one’s job, not determine if the employee is disabled. That makes it employment-related and consistent with business necessity. (Margherita v. FedEx, et al., No. 07-CV-4826, ED NY, 2011)

Final note: Margherita didn’t lose anything with his transfer to another position. That made it impossible for him to argue that he had been punished for being disabled.

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