ADA Requires Best Available Medical Information in Making Individualized
“Direct Threat” Determination
August 2003
The Ninth Circuit recently ruled that the
Americans with Disabilities Act requires experts, not generalists, to conclude
whether a current or prospective employee poses a threat to himself or others.
Employers may have to reevaluate the processes they use to determine whether
applicants and employees can perform jobs safely and whether to seek the advice
of medical specialists instead of company doctors when making the assessment.
by Paul
J. Siegel, Esq.
Jackson Lewis
LLP
The U.S. Court of Appeals for the Ninth Circuit ruled on July 23, 2003, that
an employer must use the best available medical information when making an individualized
assessment under the Americans with Disabilities Act (ADA) of whether an applicant
poses a “direct threat” to himself or others. In a case familiar to workplace
law and human resources professionals, the Nonth Circuit ruled in Echazabal v Chevron U.S.A. Inc., F2d (9th Cir
(2003) that the ADA required more than “the advice of a generalist and an expert
in preventive medicine” to conclude that the individual’s medical condition
met the “direct threat” requirements. “Before terminating an individual’s livelihood,
the ADA requires more,” the court concluded.
In this decision, a divided panel of the Ninth Circuit reversed a ruling
of summary judgment in favor of the employer, finding that despite its reliance
on medical opinions that concluded a direct threat would have existed if it
hired the individual, the employer had failed to make the “individualized assessment”
required by the ADA. The U.S. Supreme Court did not review this aspect of the
case when it issued its June 2002 ruling in Chevron
USA, Inc. v Echazabal, 536 U.S. 73 (2002).
Among other things, the Ninth Circuit's decision arguably requires employers
to reevaluate the processes they follow in determining whether applicants and
employees can perform jobs safely. It also calls into question the opinions
of “company doctors”, who are generalists. It appears now that employers, especially
those operating in the Ninth Circuit, must be prepared to argue that their “direct
threat” determinations were correct, based on the best available medical evidence.
This decision likely will force most employers to retain medical experts to
offer opinions concerning the ability of applicants and employees to perform
jobs safely. Employers and their counsel also will need to critically evaluate
the medical judgment of doctors who, in turn, may need to prepare more detailed
medical reports justifying their opinions.
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