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Let applicant decide if job threatens his health

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in Discrimination and Harassment,Employment Law,Human Resources

Mario Echazabal worked for contractors at a Chevron oil refinery in California for 20 years before he applied to work directly for the company in the same unit. But Chevron refused to hire him after a pre-employment physical showed he suffered from hepatitis C. The company said it feared the chemicals would severely aggravate his hepatitis.

Echazabal sued under the Americans with Disabilities Act (ADA). Chevron defended its action by pointing to a U.S. Equal Employment Opportunity Commission (EEOC) regulation that allows companies to exclude workers who pose a direct threat to their own health and safety.

Some courts have let employers use this "direct threat to self" defense. But not this one. The 9th Circuit ruled for Echazabal, declaring that the ADA clearly says ?that employer "paternalism" is not a legitimate reason to deny a person a job. (Echazabal v. Chevron USA Inc., No. 98-55551, 9th Cir., 2000)

The court also knocked down Chevron's argument that personal safety is an "essential function" of the job, even though the company's job description required the employee to be able to tolerate such chemicals. The court said that not every employment condition is an essential function, even if it's in writing.

Advice: There's no question that you can deny a job if a person's medical condition poses a threat to co-workers or customers. But this ruling throws a wrench into your ability to use the "direct threat to self" defense to block a person from a position.

What should you do if a disabled employee applies for a job that could threaten his own safety? Explain the potential risks, but leave the decision up to him whether to pursue the position.

Because of this ruling, this approach is now mandatory in the 9th Circuit: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

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