Resource - What Constitutes Direct Threat

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“ What Constitutes Direct Threat?”

A TSAOHN member requested help for the following issue:

I'm requesting a resource for company protocol regarding employees that have safe sensitive jobs that are on daily pain medication that may impair their judgment for medical condition. It's my understanding that when an employee has prescribed medication that needs to be taken daily then that employee falls under the ADA . 2/17/2009

The answers contributed below are for members to utilize in problem solving for this particular situation; they have not been researched by any legal authority.

Thank you to all the TSAOHN Members who contributed to this query.

We do not apply the ADA to someone who takes daily RXs. The ADA states that one or more of the activities of daily living (eating, breathing, dressing, etc.) have to be severely impacted or unable to be performed in order to be considered disabled. Also, if you perceive or treat these employees as if they were disabled, then YOU have placed them in that category and they are perceived as being under the ADA.

I cannot tell what your business is, so you need to go back to the regulations that govern your safety sensitive positions (i.e., DOT, FAA, etc.). If you read the regs, it will spell the information out for you. If you have a plant physician or medical director, you can obtain help from them, too. Or someone at the corporate offices will be knowledgeable in the industry standards. KB, North Texas Chapter

My understanding on this topic is that policy and protocol vary from company to company and Cynthia would be best to consult a medical person who is knowledgeable on the work being conducted in her setting. Some industries do not allow employees to work in safety sensitive job while taking narcotics. It appears there is a great deal of opinion out there. AM, Houston Chapter.

This would be a great question for AAOHN's professional affairs. The contact person is Dean Burgess. Her email is dean@aaohn.org. DR, North Texas Chapter

It appears that the key words in this question are “safety-sensitive”. The information below was copied from the ADA web site.

29 C.F.R. part 1630, App. §1630.15(b) & (c). The ADA defines "direct threat" as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation." 42 U.S.C. §12101(3). Implementing regulations establish the analysis to be used in determining whether an applicant or employee poses a 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 an individual poses a "direct threat" shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) the nature of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.

29 C.F.R. §1630.2(r). Finally, the EEOC’s interpretive guidance for the "direct threat" provision provides that:

[a]n employer...is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability, of substantial harm; a speculative or remote risk is insufficient...Determining whether an individual poses a significant risk of substantial harm to others must be made on a case-by-case basis. The employer should identify the specific risk posed by the individual. For individuals with mental or emotional disabilities, the employer must identify the specific behavior on the part of the individual that would pose the direct threat...
[C]onsideration [of the relevant factors] must rely on objective, factual evidence – not on subjective perceptions, irrational fears, patronizing attitudes, or stereotypes – about the nature or effect of a particular disability, or of disability generally. Hope this will be helpful to you. LP, Austin Chapter

These responses will also be linked from the Resource Center under "What Constitutes a Direct Threat."