How To Determine If An Employee Is A Direct Threat For ADA Purposes
The protections of the Americans With Disbilities Act (ADA) are waived if an employee poses a "direct threat."
What is a "direct threat" for purposes of the ADA?
- A "direct threat" is a significant risk of substantial harm to the individual or others that cannot be eliminated or reduced through reasonable accommodation This determination must be based on objective, factual evidence, including the best recent medical evidence to treat and cure the health conditon.
- In making a direct threat assessment, the employer must evaluate the individual's present ability to safely perform the job. The employer also must consider:
- The duration of the risk
- The nature and severity of the potential harm
- The likelihood that the potential harm will occur; and
- The imminence of the potential harm.
- The harm must be serious and likely to occur, not remote and speculative.
- The employer must also determine whether any reasonable accommodation would reduce or eliminate the risk. For example, a school district may not demote a high school principal, who has been successfully treated for non-Hodgkin's lymphoma, because it fears that the stress of the job may trigger a relapse.
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