Risky Business

As HR professionals are all too aware, employers have a legal duty to provide a safe workplace for employees. In many cases, employers also have a duty to protect others, including customers and members of the general public, from foreseeable harm.

An increase in employment-related tort litigation has further heightened employers’ safety concerns. Employers not only can be held vicariously responsible for the harmful acts of employees or agents, but also can be held accountable—sometimes with punitive damages—for injuries traced to negligence in the hiring, retention or entrustment of employees.

It follows then that employers have overwhelming economic and humanitarian incentives to select employees carefully, to set thoughtful, safety-based qualification standards, and to respond with corrective action as soon as they identify any particular risk of injury.

Imagine the following scenarios:

• A hospital terminates a treating physician after patients and co-workers complain that the doctor, who had previously been treated for problematic alcohol usage, smelled of alcohol while at work. Another hospital discharges an anesthesiologist with sleep apnea for falling asleep during surgical procedures.
• A parcel delivery company requires drivers to have adequate vision in both eyes, on the theory that the safety of parcel truck driving, which includes numerous stops and starts in urban traffic, is enhanced by good peripheral vision and depth perception.
• A driver employed to transport small children for a child care center is removed from the job when the employer discovers that she has a severe hearing impairment.
• In response to concerns that an oil tanker captain’s drinking contributed to a massive environmental disaster, an oil company sets new standards that preclude people with a documented history of substance abuse from working in certain high-level, unsupervised, safety-sensitive positions.

These are all slam-dunk responses to legitimate safety concerns, right?

Not so fast. The employer in each of those scenarios was sued for allegedly violating the Americans with Disabilities Act (ADA). Each case illustrates the interplay (some would say clash) between the ADA and employer safety standards.

Direct-Threat Exception

The ADA expressly permits employers to exclude individuals who pose a “direct threat,” defined as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” Unfortunately, the direct-threat exception is inadequate to protect the employer’s and the public’s interests in promoting safety.

The direct-threat test is extraordinarily narrow. According to guidelines issued by the Equal Employment Opportunity Commission (EEOC), an employer that either refuses to hire or discharges a disabled employee for “direct threat” reasons has the burden of demonstrating that its “individualized assessment of the risks” posed by the employee “in light of current medical knowledge” warrants the exclusion. The EEOC guidelines take into account the following four factors:

• Duration of risk.
• Nature and severity of potential harm.
• Likelihood that harm will actually occur.
• Imminence of potential harm.

This four-factor test is far from reassuring to employers who aspire to high safety standards and who worry about being second-guessed. How much risk is too much? And what exactly is meant by “imminence” of potential harm? Does it preclude the employer from enforcing job qualification standards to protect the public in case of an earthquake if such qualifications adversely impact a person with a disability? After all, even in earthquake-prone California, quakes would hardly be considered “imminent” at any given moment. The tough burden imposed by the direct-threat test can force an employer to choose between setting aside good-faith safety concerns and risking unlawful disability discrimination.

Let’s look at examples of the direct-threat test in action. In the 1996 case of Rizzo v. Children’s World Learning Center, the employer demoted a hearing-impaired driver of a child care van in the belief that the driver’s impairment posed a safety risk to the children transported in the van. After years of litigation, the 5th U.S. Circuit Court of Appeals held the employer liable for disability discrimination because it could not prove that the driver was an imminent threat to the children.

In the 1995 case of Stillwell v. Board of Police Commissioners, a federal trial court in Missouri applied the direct-threat test in refusing to enforce an employer’s exclusion of a one-handed applicant for the position of armed security guard.

In the 2004 case of Branham v. Snow, an employer excluded employees with impairments that subjected them to “sudden incapacitation” from jobs as criminal investigators on the theory that their conditions might put the employees or others in harm’s way. The 7th Circuit disagreed that the employee in question necessarily constituted a direct threat of imminent harm and sent the case back for a disability discrimination trial.

In all of these cases—despite the employer’s apparently legitimate safety concerns—the direct-threat analysis invited judicial second-guessing and arguably limited the employers to setting safety-related physical qualification standards at the lowest common denominator.

Other courts, apparently troubled by this message, have stretched beyond the EEOC guidance and given employers more leeway. In the 2000 case of Becker v. Humana Health Plan, for example, the 7th Circuit upheld termination of a treating physician with a history of “past” alcohol abuse, on the basis of patients’ and co-workers’ complaints that the doctor smelled of alcohol while at work, despite the doctor’s denials and the lack of any hard evidence of on-the-job intoxication.

Similarly, in the 2001 case of Emerson v. Northern States Power Co., the 7th Circuit found that a power company acted lawfully when it declined to reinstate an employee to a technical position that sometimes required emergency responses after learning that the employee suffered memory impairments and anxiety due to a nonwork-related accident. Although there was no showing of an anxiety attack during an actual event, and safety-sensitive calls involved less than 5 percent of the employee’s total call volume, the court reasoned that an employer should not have to wait for an accident to occur before taking steps to reduce risk.

Despite commonsense rulings in these and similar cases, application of the direct-threat analysis is inefficient and yields inconsistent results in protecting the public from harm. It would be tragic if employers set safety standards at the lowest possible level in fear of the difficulty of proving—with established medical evidence—that higher standards are needed to avoid imminent risk of severe harm.

'Other Law' Exception

A second safety-related ADA exception allows employers, regardless of employees’ or applicants’ disabilities, to impose safety standards required by another law or regulation. Thus, for example, employers may require applicants for a pilot position to meet the government’s minimum eyesight requirement for a pilot’s license. Known as the “other law” exception, this ADA defense also is quite narrow and inflexible. It focuses on the government’s minimum safety standards, it does not help employers that aspire to higher safety standards, and it doesn’t take into account the special challenges associated with particular jobs within a broad class of jobs.

Ironically, some litigants have used the “other law” exception to oppose employers’ safety initiatives undertaken in good faith. They argue that the government’s minimum standard (the safety floor) also constitutes a company’s maximum allowable standard (the safety ceiling). The results can be bizarre, effectively warning employers—long encouraged to avoid foreseeable workplace harm—that setting standards higher than government minimums might expose them to ADA liability.

A case in point is EEOC v. United Parcel Service. Relying on the “other law” exception, the EEOC took the position in this 2002 case that it was unlawful for UPS to set vision protocols for drivers based on similar standards required by the U.S. Department of Transportation (DOT) for drivers of large trucks. DOT regulations had long precluded individuals with vision in only one eye from driving trucks weighing over 10,000 pounds. As of 1995, that standard did not apply to drivers of trucks weighing less than 10,000 pounds.

The UPS fleet included both types of vehicles, and the company believed that drivers of their smaller parcel trucks—usually operating in urban centers and doing a lot of stopping and starting—might actually rely more on peripheral vision and depth perception (impaired in those with monocular vision) than drivers of the larger trucks, who did more highway driving.

In good faith, and for safety reasons related to the job in question, UPS required both sets of drivers to meet a monocular vision test. The company presented evidence that monocular drivers as a whole were involved in more accidents than others as a whole and had less opportunity to see a child, cyclist or car darting from the impaired side. Decreased peripheral vision compromised a driver’s ability to perform safely as compared to a person without that impairment, according to the company’s evidence.

Nonetheless, the district court rejected UPS’s safety concerns and held that because UPS had failed to do a case-by-case analysis, the company had discriminated in refusing to hire monocular applicants to drive city trucks. Under the circumstances, and despite UPS’s medical testimony, the court held that any across-the-board vision rule was simply improper unless required under federal or state licensing guidelines.

As this court ruling illustrates, the “other law” exception does little to support employers that aspire to improve safety, and it may unreasonably burden such efforts.

Not-A-Disability Decisions

The 9th Circuit eventually reversed the UPS decision on the narrow ground that the particular applicants could see well enough to perform many other jobs and therefore they did not have a “disability” as defined by the ADA. But that ruling falls far short of upholding the company’s right to set workplace qualifications designed to improve safety.

Other courts have made similar not-a-disability rulings. The Supreme Court, for example, has held that people with carpal tunnel syndrome, severe myopia, hypertension or monocular vision do not necessarily have disabilities, especially if their limitations can be alleviated with medication, eyeglasses or other mitigating devices. These rulings are useful up to a point. But they are not particularly helpful to employers trying to apply uniform safety qualifications because most employers can’t afford to pin their hopes on the chance that, in court, a particular safety-related impairment won’t be considered a disability.

Remember The Exxon Valdez?

Let’s go back to 1989 when the oil tanker Exxon Valdez ran aground, spilling 11 million gallons of oil and causing catastrophic environmental damage. Exxon paid $2.2 billion in cleanup costs associated with the disaster, along with close to $300 million in compensatory damages to affected individuals and businesses. Litigation is still pending before the 9th Circuit over the original $5 billion award of punitive damages.

The tanker captain’s history of substance abuse was an issue at trial, even though he had successfully completed a treatment program and, officially, had a clean bill of health at the time of the spill. It was later alleged that the captain had relapsed into alcohol use and there was evidence that he may have been “under the influence” at the time of the accident. An Alaskan jury found the captain not guilty of “operating” the vessel while intoxicated (he was in his cabin at the time of the incident), but he was found guilty of inattention and negligence.

Reacting to the Valdez incident, and factoring in the generally high rate of recidivism in people with a history of substance abuse, Exxon took bold steps to prevent future accidents. Even though the company was aware that the ADA protected past substance abusers from discrimination, Exxon decided that these individuals posed too much risk to hold jobs that were both safety sensitive and were performed without much supervision—like the job of ship captain. For this small group of jobs only, Exxon instituted a blanket exclusion of individuals with a history of substance abuse.

In short order, Exxon’s new policy embroiled the company in litigation with the EEOC that lasted many years and finally ended up in the 5th Circuit. In the 2000 case of EEOC v. Exxon USA Inc., the EEOC claimed that Exxon’s across-the-board rule was illegal, even if it applied only to very limited job positions. The EEOC argued, first, that it would be difficult if not impossible to prove that in all cases a successfully treated substance abuser was an imminent threat (remember the earthquake example?) and, second, that safety-related qualification standards must meet the EEOC’s direct-threat standard. The latter principle, in effect, imposes a higher burden on employers to justify safety-related qualification standards than other—potentially less important—job requirements.

Safety-Related Qualification Standards

The 5th Circuit saw the Exxon case from a different perspective than the EEOC. That court held that an employer can justify a general safety requirement—applied across the board to employees in a given job classification—by showing the general requirement is job-related and consistent with business need. According to the court, the stricter direct-threat analysis only applies in cases involving an employer’s response to an individual employee’s supposed risk that is not addressed by an existing qualification standard.

The Exxon appellate decision is consistent with Supreme Court precedent under other antidiscrimination laws that upholds job-related employment standards that have a disparate impact on a protected group, if the employer can show that the test is “predictive of or significantly correlated with important elements of work behavior” in the job or jobs for which candidates are being evaluated. Thereafter, a plaintiff may attempt to discredit the standard by showing that there is a less discriminatory alternative that would be equally effective in meeting the employer’s legitimate business objectives—including safety.

In cases under other employment statutes, courts have made it clear that, ordinarily, employer business objectives should not be second-guessed. If employers are free to set objectives for productivity, such as setting a required typing speed, why should courts second-guess employers on the far more important objective of improving safety?

The Supreme Court did not review the 5th Circuit’s decision in the Exxon case, and it’s possible that other federal appeals courts would disagree with it. But the high court has made nonbinding statements in other cases that seem to support the 5th Circuit’s reasoning. In Western Air Lines Inc. v. Criswell, a 1985 case involving mandatory retirement of pilots, for example, the high court commented that “it will not be overly burdensome to persuade a trier of fact that [a safety-based] qualification is ‘reasonably necessary’ to safe operation of the business.”

Thus, it is clear that established, thoughtfully drafted job qualifications that incorporate safety goals will go far to help employers defend against ADA claims.

Review of safety-related job qualifications under a simple, job-related analysis would allow employers to exclude individuals with impairments based on safety, even if there is a possibility that the impairments are ADA disabilities.

If an employer’s qualification standard passes the job-relatedness test, the employer will not have to rely on the hope that the court will sidestep the issue by finding that the impairment is not a disability.

Practical Advice

Even though courts don’t always treat the relevant issues consistently, our review of hundreds of cases involving the ADA and safety issues reveals some common points of wisdom for HR managers:

• Safety comes first. Regardless of other issues, don’t take action that you honestly believe will compromise the safety of your workers, customers or the general public. If you have identified a legitimate safety risk, you don’t have to wait for an accident to occur to prove that the danger is real.
• In the words of Supreme Court Justice John Paul Stevens: “The employer cannot be expected to establish the risk of an ... accident to a certainty, for certainty would require running the risk until a tragic accident would prove that the judgment was sound.”
• If you think particular circumstances present a conflict between the ADA and safety concerns, ask yourself (or counsel) whether or not, in light of recent case law, the employee’s impairment is likely to be held an ADA disability.
• Craft specific and thoughtful job descriptions that include qualifications necessary to promote high safety goals. Make certain that safety-related qualifications are job-related and that your legitimate goals can’t be accomplished in some less restrictive way.
• It is defensible to be more aggressive in setting standards for safety-sensitive positions.
• You need not modify essential job standards related to safety, and, in general, you should limit accommodations to those that allow the individual to perform the job as required by safety standards, and as safely as other employees.
• Do not tolerate inappropriate or violent employee behavior in the belief you are properly accommodating a disability. The ADA does not shield employees who violate company conduct rules from the consequences of their actions.

The ADA was enacted to give individuals with disabilities “a chance in life.” A laudable goal indeed. But that goal must be tempered so that giving one person a chance in life does not mean taking a chance with someone else’s life.

Editor’s Note:This article should not be construed as legal advice or applied to specific factual situations.

Laura M. Franze and M. Brett Burns are partners in the labor section of Akin Gump Strauss Hauer and Feld LLP in Dallas. They are nationally recognized experts on the ADA, having successfully represented corporations in ADA trials and appeals in seven appellate jurisdictions.