Workers' Compensation and the ADA--Hiring Decisions.
In enacting the ADA, Congress sought to address stereotypes regarding disability,
including assumptions about workers' compensation costs. An employer cannot refuse to hire a person because it assumes that because of a disability the person poses increased risk of an occupational injury and therefore, increased workers compensation costs.
An employer can refuse to hire a person with a disability only if the employer can show that the individual would pose a “direct threat” in that position. This means that an employer may not “err on the side of safety” simply because of a potential health or safety risk. Rather, the
employer must demonstrate that the risk rises to the level of a
direct threat.
Direct Threat
"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 a direct threat exists must be the result
of a fact-based, individualized inquiry that takes into account
the specific circumstances of the individual with a disability.
In determining whether employment of a person in a
particular position poses a direct threat, the factors to be
considered are:
* the duration of the risk;
* the nature and severity of the potential harm;
* the likelihood that the potential harm will
occur; and
* the imminence of the potential harm.
Some state health or safety laws may permit or require
an employer to exclude a person with a disability from employment
in cases where the ADA would not permit exclusion because
employment of the person in the position does not pose a direct
threat.
Because the ADA supersedes such state laws, an employer
may not defend its exclusion of a person with a disability on the
basis of such a law.
Prior Occupational Injuries
Employers may not refuse to hire a person with a
disability simply because the person sustained a prior occupational injury.
The mere fact that a person with a disability
experienced an occupational injury in the past does not, by
itself, establish that his/her current employment in the position
in question poses a direct threat, i.e., a significant risk of
substantial harm that cannot be lowered or eliminated by a
reasonable accommodation.
However, evidence about a person's
prior occupational injury, in some circumstances, may be relevant
to the direct threat analysis. An investigator should consider the following factors
regarding a prior occupational injury in applying the direct
threat analysis.
whether the prior injury is related to the
person's disability (e.g., if employees without disabilities in
the person's prior job had similar injuries, this may indicate
that the injury is not related to the disability and, thus, is
irrelevant to the direct threat inquiry);
the circumstances surrounding the prior injury
(e.g., the actions of others in the workplace or the lack of
appropriate safety devices or procedures may have caused or
contributed to the injury);
the similarities and differences between the
position in question and the position in which the prior injury
occurred (e.g., the prior position may have involved hazards not
present in the position under consideration);
whether the current condition of the person with
a disability is similar to his/her condition at the time of the
prior injury (e.g., if the person's condition has improved, the
prior injury may have little significance);
the number and frequency of prior occupational
injuries;
the nature and severity of the prior injury
(e.g., if the injury was minor, it may have little or no
significance);
the amount of time the person has worked in the
same or a similar position since the prior injury without
subsequent injury;
whether the risk of harm can be lowered or
eliminated by a reasonable accommodation.
Example A:
CP applies for a position operating a large
saw with R, a lumber mill. After making a conditional job offer,
R discovers that CP, who has insulin-dependent diabetes, was
seriously injured while operating a similar saw for another
lumber mill. The injury was caused by the failure of a safety
device and was unrelated to CP's diabetes. R assumes, however,
that the injury was related to the diabetes and refuses to hire
CP for safety reasons. CP's prior occupational injury, which was
unrelated to her disability, does not constitute evidence that
she poses a direct threat in the saw operator position because of
her disability.
Example B:
CP, who has a shoulder disability, applies
to R restaurant for the position of bus person which requires
frequent carrying of basins full of dirty dishes weighing 40-45
pounds. After a conditional job offer, R discovers that CP has
had five serious injuries to his left shoulder while carrying
basins full of dirty dishes in other bussing jobs over the past
four years. A medical examination and physical fitness test show
that the condition of CP's shoulder has significantly
deteriorated with each injury. They also show that, if CP
carries heavy basins, there is a high probability that his left
shoulder will be immediately and permanently injured to the point
where his left arm will be useless. Assume that there is no
reasonable accommodation that will enable CP to perform the
essential functions of the bussing position. The objective
medical and other evidence (the number, frequency, nature, and
severity of the prior injuries; the similarity of the position at
issue to the positions in which the injuries occurred; the
progressive deterioration of CP's shoulder with each injury; and
the evidence that a further injury will render CP's arm useless)
supports a finding that CP's employment in the position of bus
person poses a significant risk of substantial harm. The
evidence further shows that the risk cannot be lowered or
eliminated through a reasonable accommodation. Therefore, CP's
employment in the position of bus person poses a direct threat
Example C:
CP applies for a position as a laborer with
R, a construction company. The position requires lifting
equipment and other items weighing up to 100 pounds. After
making a conditional offer of employment to CP, R requires him to
undergo its standard medical examination. As a result, R
discovers that CP previously injured his back while working for
an automotive repair shop. CP's prior on-the-job injury, which
occurred when CP was helping a co-worker push a stalled vehicle,
was not serious. CP has completely recovered from the back
injury. Nevertheless, R rescinds its offer of employment because
it is worried about increased workers' compensation costs and
considers CP to be a poor risk for heavy labor.18 CP's prior
occupational injury, which was not serious and which occurred in
a position involving hazards not present in R's position, does
not constitute evidence that employment of CP in the laborer
position would pose a direct threat.
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