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Direct Threats to Health and Safety

The ADA does allow an employer to refuse to hire persons whose employment in the proposed job would pose a direct threat to themselves or others. This recognizes the existing rule that employers may choose to protect employees from harm and protect themselves from worker's compensation claims. The primary difference under the ADA is a greatly strengthened presumption that the employee is fit for work.

Direct Threat means 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. The determination that an individual poses a "direct threat" shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:

(1) The duration of the risk;

(2) The nature and severity of the potential harm;

(3) The likelihood that the potential harm will occur; and

(4) The imminence of the potential harm.

Most critically, the determination must be made on a case-by-case basis. Employers must be prepared to prove a "high probability, of substantial harm; a speculative or remote risk is insufficient." For example, if the threat is due to a behavioral disorder, the employer must identify the specific behavior that would pose a threat and the likelihood of occurrence. If the behavior is quasi-voluntary, such as sexual assault, an assurance by the employee that he is reformed would probably defeat the employer's attempt to prove him unfit. Compliance with the ADA provides no defense, however, if the employee assaults a customer. The injured customer may sue the employer for negligently hiring a known rapist.

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