In light of April’s shootings at Virginia Tech, organizations are taking a fresh look at their evacuation and emergency notification procedures. When you review yours, resist the well-intentioned temptation to lessen risk by shunting aside disabled employees.
Be especially cautious if suggests transferring or otherwise removing a disabled employee because of fears he or she can’t evacuate in an emergency or may need special assistance.
Here’s why: The EEOC aggressively advocates for the rights of disabled employees to work in potentially hazardous locations—even if it’s difficult or impossible to guarantee their safety. The courts say employers can’t rely on blanket assumptions about safe evacuations, but must individually evaluate each disabled employee’s abilities. Evacuation concerns aren’t a blanket excuse to refuse to hire most disabled applicants.
Recent case: Laura Barrios worked at a DuPont chemical plant as a lab operator. When she developed medical problems that made it hard for her to walk, the company expressed concern for her safety in the event of a chemical leak, spill or explosion.
DuPont ordered a medical examination, and company doctors declared Barrios couldn’t safely walk anywhere in the plant. DuPont considered the ability to evacuate an essential job function, so it discharged Barrios.
She filed an EEOC complaint, and the agency sued DuPont on her behalf. A jury concluded DuPont had regarded her as disabled and then fired her because of its perception. It awarded Barrios back pay plus $1 million in punitive damages. (The court reduced the punitive award to $300,000—the ADA maximum.)
DuPont appealed, arguing Barrios was a danger to herself and others. But the 5th Circuit let the jury award stand. Barrios had testified that she had safely evacuated during an earlier drill, testimony the court said the jury was free to consider to discount DuPont’s irrational fears. (EEOC v. DuPont, No. 05-30712, 5th Cir., 2007)
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