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It may come as a surprise to some employers that an employee with a medical condition that poses a risk in the workplace may be entitled to a reasonable accommodation, even if that job is a safety-sensitive position. That was the outcome in the recent case of Allen v. Banks County, a matter heard in the Northern District of Georgia.  In Allen, a 911 operator who suffered from anxiety and panic attacks, was fired because of concerns her condition jeopardized the safety of residents. During the trial, the employer argued that the operator was terminated because she “could not be allowed to handle life and death emergency calls in her condition.” They cited several incidents including one in which the operator experienced hallucinations as a result of medication prescribed to control her anxiety.

On its face, this sounds like a reasonable response to this situation. How many people would feel comfortable knowing that the 911 operator in their town suffered from debilitating anxiety attacks while on duty? However, the jury didn’t think it was reasonable and returned a verdict on behalf of the employee finding that she had been the victim of discrimination based on a failure to accommodate and retaliation. In addition, the judge, for good measure, increased the amount of money damages awarded to the plaintiff.

What about a bus driver who suffers from diabetic seizures or a surgeon with a bi-polar condition? Can an employer ever use workplace safety as a basis for denying an accommodation? 

The answer is yes. The ADA specifically allows employers to “establish qualification standards that will exclude individuals who pose a direct threat—i.e., a significant risk of substantial harm—to the health or safety of the individual or of others.” However, the approach to making that determination and staying out of legal trouble is the same approach you would take in any ADA accommodation matter. Begin with the interactive process. In the case of safety-related concerns, you can’t assume the risk exists simply because the employee has a medical condition. If during the interactive process you obtain objective and medically supportable documentation that the employee poses a substantial risk of harm in the workplace, you may have grounds to deny the accommodation. In addition, the review must be individualized so your decision can’t be based solely on the fact that some diabetics have seizures or the assumption that people with extreme anxiety disorders are unable to perform their jobs. 

The ADA is structured to encourage employers to “balance the interests of employees with disabilities with the legitimate interests of employers in maintaining a safe workplace.” 

So be careful and be thoughtful. Employees with disabilities who hold sensitive-safety positions are entitled to consideration for a reasonable accommodation under the ADA. If you believe no reasonable accommodation is available, you must demonstrate that you considered all possible options for the employee by thoroughly reviewing objective medical documentation that shows they pose a substantial risk in the workplace. Having a concern about workplace safety alone will not be enough to justify terminating an employee. You must show that you engaged in an extensive interactive process, and that after doing so, you could not reasonably accommodate the disability.  

James Venable

James Venable

James Venable, JD, SPHR, is the Vice President of Employment Law, Absence and Accommodation Compliance at ReedGroup, where he provides expertise in the areas of Absence Management Compliance and Employee Relations Counseling. Mr. Venable has more than 20 years of experience across senior roles in Legal, Human Resources, and Compliance from several Fortune 500 companies.

Mr. Venable joined ReedGroup in April 2018 after serving as Vice President of Human Resources, Employee Relations, Labor Relations, Compliance and Environmental Health and Safety for Comcast, where he was responsible for engagement and labor relations activities for the company’s West Division Business Unit.

He received his Juris Doctorate from the University of Connecticut School of Law, his BA’s in Political Science and English from the University of New Hampshire, and is licensed to practice law in Massachusetts.

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