Third Circuit Employment Law 101: ADA Defenses - Direct Threat

September 7, 2010
By Eric B. Meyer on September 7, 2010 9:39 PM | | Comments

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:

  1. 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.

  2. This direct threat could not be eliminated by providing a reasonable accommodation.
A direct threat means a significant risk of substantial harm to the health or safety of the person or other persons that cannot be eliminated by a reasonable accommodation. The determination that a direct threat exists must have been based on a specific personal assessment of the employee's ability to safely perform the essential functions of the job. This assessment of the employee's ability must have been based on either a reasonable medical judgment that relief on the most current medical knowledge, or on the best available objective evidence.

In determining whether the employee would have created a significant risk of substantial harm, one must consider the following four factors:

  1. How long the risk would have lasted;

  2. The nature of the potential harm and how severe the harm would be if it occurred;

  3. The likelihood the hard would have occurred; and

  4. Whether the harm would be likely to occur.
Remember, the burden here is on the employer to prove that the employee poses a direct threat, not on the employee to prove that he isn't a direct threat.