The Employer Handbook Blog

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.