Q. Can I consider safety when deciding whether to hire a disabled applicant or retain an employee with a disability?
A. An employer may require that an individual not pose a “direct threat” to the health or safety of herself or others. The ADA regulations define direct threat as 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 individual must pose a significant risk, not just a slightly higher risk, based on objective evidence of the following factors:
- Duration of the risk
- Nature and severity of the potential harm
- Likelihood that the potential harm will occur
- Imminence of the potential harm.
If an individual poses a direct threat as a result of a disability, determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level. If no accommodation would either eliminate or reduce the risk, you may refuse to hire an applicant or discharge an employee who poses a direct threat.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Is Howard Stern harassing your female employees?
- Be prepared to show you used due diligence to prevent on-the-job subcontractor injuries
- Check bankruptcy cases when sued—you just might win a quick dismissal
- Think odd employee might benefit from mental exam? Talk to a lawyer first