ADA disability: Always allow for individualized assessment of employee’s condition
Disabled employees are entitled to individualized assessments of their limitations so employers can determine if a reasonable accommodation is possible.
Some employers have a protocol for particular conditions that may pose a health and safety risk. For example, employees who are prone to seizures may pose a risk should they have a seizure while driving or while working on a production line. However, those protocols must necessarily be based on general standards.
That’s why it’s crucial to be flexible, since disabled employees are entitled to an individualized assessment.
Recent case: Emmett, who is black, was hired as a Pennsylvania State Police cadet. Cadets are required to undergo 18 months of training before becoming full-fledged state troopers. They receive six months of training at the Pennsylvania State Police Academy and 12 months of field training as probationary troopers. Emmett made it through academy training into the probationary period.
Then Emmett was in an off-hours auto accident, suffering traumatic brain injury and multiple facial fractures. Later, he was diagnosed with post-traumatic epilepsy and prescribed anti-seizure medications. Despite that treatment, Emmett suffered two more seizures.
At that point, the State Police decided that he could not continue to work as a probationary trooper based on its seizure protocol—a method to assess whether a trooper who suffers from seizures might be a danger to himself or others. The protocol was developed by a Penn State epidemiologist and was based on the likelihood of a repeat seizure.
Emmett was terminated based on the protocol and because no other positions were available that he could perform.
Before his termination, a doctor performed an individualized assessment of his condition, his seizure history and his medications. The doctor concluded that if Emmett was allowed to resume the training program, he would pose a threat to himself and others. Because there was an individualized assessment, the protocol didn’t violate the law as a blanket prohibition against employees with seizure disorders.
Emmett sued, alleging that he had not been reasonably accommodated and that he should have had the opportunity to finish his training. He wanted the state to create a special position that would allow him to do so.
The court dismissed the case. It reasoned that Emmett wasn’t qualified for the trooper position because seizures while on duty might put him and others in danger. It added that employers aren’t required to create entirely new positions as an accommodation. (Coleman v. Pennsylvania State Police, No. 13-3255, 3rd Cir., 2014)
When does a disability create too much danger?
It’s the rare disability that is so serious that it cannot be accommodated. The major exception is a condition that creates a danger to the disabled person or others if the individual is allowed to work at a particular job.
A direct threat poses 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.
In determining whether an individual would pose a direct threat, the factors to be considered include the:
- Duration of the risk
- Nature and severity of the potential harm
- Likelihood that the potential harm will occur
- Imminence of the potential harm.