Recent Decision Demonstrates Need for Employers to Carefully Assess Whether an Employee Presents a "Direct Threat of Harm"

A federal district court in Wisconsin recently held that the EEOC could proceed to trial on its claim that an employer violated the Americans With Disabilities Act ("ADA") by terminating an employee who worked as an assembler on a manufacturing line on the grounds that the employee's seizure-like symptoms presented a direct threat. EEOC v. Rexnord Industries, LLC, 2013 WL 4678626 (E.D. Wis., August 30, 2013). The court reached this conclusion even though the employee was taken from the plant by ambulance on two occasions in a six-month time period after experiencing seizure-like symptoms, the company doctor wrote an opinion saying that she presented a direct threat of harm to herself or others, and she had applied for federal SSDI benefits claiming that she was disabled and was unable to work. Although the decision may seem extreme, it shows that employers must proceed cautiously when taking adverse action against an employee on the grounds that they are a direct threat of harm to themselves or others and consider the employee's specific circumstances.

What Evidence Is Required To Show a Direct Threat of Harm?

The direct threat analysis considers the most current medical knowledge and/or the best objective evidence concerning the employee's individual circumstances. The test factors include (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the harm will occur; and (4) the imminence of the harm.

The Court's Decision

In the Rexnord Industries case, the court concluded that there were disputed issues of material fact regarding whether the company satisfied its burden of proving that the relevant factors had been met.

First, the court determined that there were questions of fact regarding the reasonableness of the company's reliance on its doctor's opinion given that the EEOC's doctor claimed that the company's doctor misdiagnosed the employee's condition.

Second, with regard to the duration of the risk, the court noted that each of the episodes in question lasted for a very short time period, and the parties' experts disagreed as to whether they were actually seizures.

Third, with respect to the nature and severity of the harm, the court agreed with the company that the risk of injury was severe (the employee worked with power tools and around sharp edges) but determined that there were issues of fact regarding the nature of the risk and the likelihood and imminence of the harm because the employee testified that she could feel when the episodes were coming and could take steps to protect herself and others.

Finally, in regard to the employee's claim for SSDI benefits, the court held that the United States Supreme Court had previously held in Cleveland v. Policy Management Systems Corp. that a statement in a claim for benefits does not automatically preclude an employee from being protected under the ADA and that the employee's claim for benefits in Rexnord Industries had been rejected.

Significance of the Case to Employers

The Rexnord Industries case illustrates the difficulties an employer faces when applying the direct threat test. On their face, the facts in that case would lead most people to the automatic conclusion that the employer had acted appropriately. However, a closer examination of the case and, particularly, of the employee's testimony that she could feel the situation coming on and was able to remove herself from the assembly line, makes the holding of the case more understandable.

The Rexnord Industries case also demonstrates that an employer who believes an employee poses a direct threat of harm must (a) go through the interactive process with the employee; (b) determine whether there are accommodations that may be made that can substantially reduce, if not eliminate, the risk; and (c) have a doctor address the four factors discussed above and then independently determine the reasonableness of the doctor's opinion given the nature of the employee's job. For example, in Rexnord Industries, the company doctor could have said the employee could not return to work until her condition was under control, as opposed to saying that she could never return to work. As such, one thing the company could have done was to review what was required to bring the employee's condition under control.