INDIVIDUALIZED ASSESSMENT REQUIRED TO ASSERT "DIRECT THREAT" DEFENSE TO CLAIMS BROUGHT UNDER THE ADA

by Charles D. Lawson

In an earlier Client Bulletin, we discussed a United States Supreme Court decision, which upheld an Equal Employment Opportunity Commission ("EEOC") regulation  permitting employers to defend against a claim brought under the Americans With Disabilities Act ("ADA") on the basis that the employee's medical condition posed a "direct threat" to his own health in the workplace.   In that case, Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002), the plaintiff, Mario Echazabal, had performed work at Chevron's California oil refinery as an employee of one of Chevron's maintenance contractors.  When Echazabal applied to work directly for Chevron in the same unit, he was denied employment based on examinations by Chevron's physicians which revealed that his liver was releasing higher than normal levels of enzymes.  Chevron concluded that Echazabal's health might be at risk from exposure to chemicals present in the unit.  Echazabal filed suit under the ADA and Chevron moved for summary judgment, based on the "direct threat" defense.  The district court granted Chevron's motion.  The Ninth Circuit Court of Appeals reversed, holding that the "direct threat" defense only applied when it was shown that an individual posed a significant risk to the health or safety of others, and declared invalid the EEOC's regulation applying the defense to situations in which the threat posed was to the employee himself.  The Supreme Court reversed the decision of the Ninth Circuit, declared the EEOC's regulation to be valid, and remanded the case to the Ninth Circuit for further proceedings.

On remand, the Ninth Circuit again refused to affirm the district court's grant of summary judgment in favor of Chevron.  While acknowledging that the "direct threat" defense can apply when it is the employee's own safety which is at risk, the Court ruled that Chevron failed to satisfy its obligations in establishing the applicability of the defense in Echazabal's specific case.  Echazabal v. Chevron U.S.A., Inc., 336 F.3d 1023 (9th Cir., July 23, 2003).

The Echazabal Court emphasized that the "direct threat" defense is an affirmative defense, with the employer bearing the burden of demonstrating the existence of a significant risk of potential harm. To carry that burden, the Court said, an employer must conduct an "individualized assessment" of the employee's medical condition and the impact of that condition on the employee's ability to safely perform his job.  This "individualized assessment" must include a consideration of the duration of the risk, the nature and severity of the potential harm, the likelihood and imminence of the potential harm, and must be based on "the most current medical knowledge and/or on the best available objective evidence."  See 29 C.F.R. § 1630.2(r).

In finding that Chevron had failed to justify its assertion of the "direct threat" defense, the Echazabal Court noted that neither of Chevron's doctors--on whom Chevron relied in excluding Echazabal from employment--had any special training in liver disease.  Moreover, Chevron's doctors were unfamiliar with the specific risks of the position which Echazabal sought.  In contrast, Echazabal's own doctors were specialists in toxicology and liver disease, had reviewed Chevron's records regarding the level of toxins present at the unit in question, and had declared that Echazabal could work at the refinery without facing any risk of harm beyond that faced by other workers.  The Court also observed that Chevron had failed to consider that Echazabal had worked at its refinery without incident or injury for over 20 years as an employee of maintenance contractors providing services there.  Ultimately, the Court held Chevron did no more than consider "generalized statements" of potential harm instead of relying "on the most current medical knowledge and/or on the best available objective evidence," as required by the applicable regulations.

TIPS
 
As we noted in our last Client Bulletin on this topic, the "direct threat" defense must always be based upon the best available medical knowledge and objective evidence.  As the Echazabal case highlights, this means employers should (1) base their decisions regarding an employee's medical condition and ability to safely perform his job on medical advice from practitioners in the area of medicine most relevant to that employee's condition; (2) ensure that examining physicians possess all relevant information regarding the employee's job responsibilities and working conditions in order to maximize the value of the medical assessment; and (3) consider an employee's work history when evaluating the likelihood and  imminence of potential harm.

Even after the "direct threat" analysis has been properly completed, an employer must consider whether any reasonable accommodation exists that would minimize or eliminate the "direct threat" created by the employee's medical condition.  See 42 U.S.C. § 12111(3) ("the term 'direct threat' means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.")   Once an employer has carefully evaluated the essential functions of the employee's position and concluded that no reasonable accommodation exists that would mitigate the safety risk created by the employee's medical condition, the employer may properly assert the "direct threat" defense.

If you have any questions regarding the Echazabal case or would like a copy of the opinion, please contact any member of our Labor and Employment Group.

 2003 Chambliss, Bahner & Stophel, P.C

This is an advertisement.  Certification as a Specialist in Labor & Employment Law by the Tennessee Commission on Continuing Legal Education and Specialization is not currently available.  None of the attorneys listed in this communication are certified in any area of Specialization.