When ADA Compliance and Safety Regs diverge

by on January 7, 2009 · 0 Comment POSTED IN: HR Info Center

Is Safety or ADA compliance your prime concern?

“I didn’t mean to hurt him,” Patrick Brennan earnestly told HR manager Jason Ditmar. “I just sort of grabbed his wrist and bent it back. As soon as I realized what I was doing I let go.”

“This is a serious incident nonetheless,” Jason said. “I realize you have post-traumatic stress disorder, as a result of your time in Vietnam. I sympathize, especially since you suffered this disorder in the service of our country. And I realize Pete startled you by coming up from
behind without warning.

“But we can’t allow employees to commit violence against each other, no matter what the reason,” Jason went on. “I’m afraid we’re going to have to terminate you.”

Reasonable accommodation under ADA Guidelines?

Patrick stared down at the floor. He twisted his hands together nervously.

“You don’t have to fire me,” he said, looking up, his eyes pleading. “If you just make sure people don’t sneak up on me from my blind side, I can keep myself in check.”

“But how can we do that?” Jason asked. “Even if we tell everybody to announce themselves before they approach you, what if somebody forgets? You might hurt them – badly.
I know you’re highly trained in unarmed combat.
“Or what if we have a visitor on the premises, who doesn’t know about you?” Jason went on. “I’m sorry, it’s just too risky.”

The appeal in Patrick’s eyes hardened into resentment. “I didn’t serve my country just to get tossed out on my ear like a dog,” he said. “I’ll fight this in court.”

Patrick filed an ADA lawsuit against the company, claiming it failed to reasonably accommodate his disability.

Did he win?

ADA Law Decision

No, Patrick didn’t win his disability lawsuit.

The court threw it out. The court ruled that his posttraumatic stress disorder, although a legitimate ADA disability, caused him to pose a direct, serious threat to his co-workers.

There was no reasonable accommodation that would allow him to keep working while reducing the risk to acceptable levels.

The court agreed with HR manager Jason that no matter what the company did, there was still a good chance of an accidental encounter that could turn ugly. The court also questioned whether employees should be burdened with the task of protecting themselves from a co-worker – which is essentially what Patrick was asking them to do.

Likely, imminent harm and ADA guidelines

We all know that you can’t normally discipline an employee on the basis of an ADA disability. But there’s an exception to the law, which allows you to take adverse action based on an employee’s disability if the employee poses a direct threat to him/herself or others.

Here are four questions you need to ask in assessing whether an employee with a disability poses such a threat:

• Is the risk long-term or only short term? In the latter case, the exception is unlikely to protect you.

• How likely is the potential harm?

• How severe is the potential harm?

• Is the harm imminent or, rather, remote in time? Again, in the latter case, you probably aren’t covered by the exception.

Cite: Jarvis v. Potter, No. 06-4090,

10th Cir., 8/30/07. Fictionalized for dramatic effect.

Issue 6.6 DOP 10-8-07

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