Can an employer terminate a disabled employee because accommodating the employee would create a significant risk of substantial harm to the employee or others in the workplace?
Yes. This is called the "direct threat" defense. To meet its burden, however, the employer must prove the following two elements by a preponderance of the evidence:
- The employer fired the employee because the employee posed a direct threat to the health or safety of the employee or others in the workplace.
- This direct threat could not be eliminated by providing a reasonable accommodation.
In determining whether the employee would have created a significant risk of substantial harm, one must consider the following four factors:
- How long the risk would have lasted;
- The nature of the potential harm and how severe the harm would be if it occurred;
- The likelihood the hard would have occurred; and
- Whether the harm would be likely to occur.