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Health Risk Decision Must Be Objective, Individualized; Also, interpreting doctor's orders
Echazabal v. Chevron U.S.A., Inc., 9th Cir., No. 98-55551, July 23, 2003. ]
Employers must individually assess applicants’ ability to do the essential functions of a job before excluding them from employment as “direct threats” to their own health or safety under the Americans with Disabilities Act (ADA), according to the 9th U.S. Circuit Court of Appeals.
The appellate court’s ruling came in its second look at the case. In its original ruling in
Echazabal v. Chevron U.S.A, Inc., the court determined that an employee cannot be denied employment because he poses a direct threat to his own health. The Supreme Court reversed that decision and sent the case back to the 9th Circuit to determine whether Chevron met the requirements of the direct threat defense.
Those requirements, which are spelled out in the Equal Employment Opportunity Commission regulations that support the ADA, state that the determination that an individual poses a direct threat must be based on “reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence” and must be based on an individualized assessment of the person’s abilities to safely perform the essential functions of the job.
The 9th Circuit found that Chevron had not conducted such an assessment.
The case involved Mario Echazabal, who had worked as a maintenance contractor at Chevron’s oil refinery in El Segundo, Calif., for more than 20 years. In 1992, Chevron offered Echazabal a position as a Chevron employee contingent on passing a physical examination. The examination revealed some liver problems, and Chevron rescinded the offer. After that Echazabal was diagnosed with, and began to be treated for, asymptomatic, chronic active hepatitis C.
In 1995, Chevron again offered Echazabal a position at the refinery as a Chevron employee, subject to passing a pre-employment physical examination. Echazabal had the physical, and shortly thereafter he received a letter informing him that Chevron was withdrawing the job offer based on its determination that working in the particular area would damage his liver and put his health at risk.
In its follow-up ruling, the 9th Circuit said the regulations obligated Chevron “to do more than consider generalized statements of potential harm.” Chevron had to consider the severity, imminence and potential likelihood of harm and had the burden of demonstrating at least “a significant risk of substantial harm” to Echazabal.
The company doctors, who had no specialized training in liver disease, concluded that Echazabal’s liver was not functioning properly, and recommended that Echazabal not be exposed to chemicals that could be toxic to his liver. Echazabal’s own doctors, who were specialists, disagareed.
The company doctors’ generalized statement “would not preclude a reasonable juror from concluding that Chevron failed to make the required assessment.”
To resolve this and other issues also involving fact questions for the jury, the court reversed the trial court’s grant of summary judgment and sent the case back for trial.
By Maria Greco Danaher, an attorney with the law firm of Dickie, McCamey & Chilcote in Pittsburgh.
Physical Results Support Exclusion from One Job
An employer was justified under the Americans with Disabilitities Act (ADA) in refusing to hire an individual who was limited in his ability to operate a forklift and to work at unprotected heights, both of which were essential functions of the particular position he applied for, ruled the 8th U.S. Circuit Court of Appeals.
Todd Schuler applied for a position at a SuperValu warehouse. He was offered a position subject to passing a physical examination conducted by Occupational Medical Consultants (OMC), the employer’s independent contractor. Schuler told OMC that he had epilepsy and was taking anti-seizure medication.
OMC informed SuperValu that Schuler was medically restricted from driving forklifts and from working around unprotected dangerous equipment or unprotected heights. However, at no time did OMC inform SuperValu that Schuler suffered from epilepsy. SuperValu withdrew the offer of employment.
In his suit against SuperValu, Schuler argued that, although he was not substantially limited in a major life activity, SuperValu viewed him as such and, therefore, violated the ADA’s prohibition against discrimination in the hiring process.
In upholding the trial court’s decision in favor of the employer, the 8th Circuit said that because Schuler “flatly denies that he is in fact substantially limited in a major life activity,” he had to show that SuperValu “mistakenly believed that [he] has a physical impairment that substantially limits one or more major life activities.”
Schuler was unable to succeed on that theory, because SuperValu had never been told the basis for Schuler’s medical restriction, nor was there other evidence to show that SuperValu had knowledge of Schuler’s epilepsy prior to withdrawing the employment offer.
The court also rejected Schuler’s argument that SuperValu regarded him as significantly impaired in the major life activity of working and, therefore, believed him to be “disabled” for purposes of the ADA.
To be considered “substantially limited” in the major life activity of working, an individual must be precluded from a class of jobs or a broad range of jobs. Because SuperValu excluded Schuler only from performing the warehouse position, the court said the Supreme Court’s reasoning in
Sutton v. United Air Lines, Inc. applied, quoting that an employer is “free to decide that some limiting, but not substantially limiting impairments make an individual less than ideally suited for a job.”
No Medical Basis For Denying All Jobs
[Ollie v. Titan Tire Corporation, 8th Cir., No. 02-3190, July 15, 2003.]
An employer unlawfully excluded an applicant from a broad range of jobs based on its faulty interpretation of the results of a pre-employment physical, the 8th U.S. Circuit Court of Appeals decided recently.
Titan Tire offered Michael Ollie a job contingent on passing a physical examination, during which Ollie indicated that he had asthma. The doctor checked the box on the examination form that stated: “The examinee is medically able to do the essential functions of the job with accommodations listed below,” where the doctor wrote: “Pt. has asthma. May have difficulty in areas [with] dust or fumes.”
According to the normal procedure, the doctor’s staff reported Ollie’s examination findings to the company by telephone. Following that phone call, the employer’s human resource representative wrote on Ollie’s application, “Asthma, no working where dust or fumes.”
After some discussion, the HR representatives determined that because there was no place in the plant that did not have dust or fumes, there was no job available for Ollie.
Ollie successfully sued Titan under the Americans with Disabilities Act. On appeal, the employer argued that Ollie had not established that the company regarded him as disabled from working in a broad range of jobs, but only as medically unable to work in its plant.
The 8th Circuit upheld the trial court’s ruling, noting that the decision makers believed that not only all manufacturing and warehouse jobs in their plant, but all such jobs in the entire local area, would involve working around dust and fumes. What’s more, the court said, the company had not lawfully relied on its doctor’s advice, but rather on its own faulty transcription and misinterpretation of that advice, which caused it to conclude “that Ollie could not perform all essential functions of any available job.”
By Margaret M. Clark, J.D., SPHR, senior legal editor for HR Magazine.
Professional Pointer 1
In light of the 9th Circuit’s earlier conclusion that the direct threat defense should not even apply to an applicant’s own health or safety, it is not surprising that the court places a heavy burden on employers. The opinions of in-house or consulting physicians who are generalists are unlikely to sufficiently establish the direct threat defense if an applicant challenges a job denial. One purpose of the ADA is to avoid stereotyping, and the requirement of expert, individualized evidence is intended to support that goal.
Professional Pointer 2
The consulting physician provided to the employer only that information essential to making a hiring decision for the particular job at stake—which worked to the employer’s advantage. For a case in which the procedures did not work so well, see Ollie vs. Titan Tire, summarized in this column. (Note that a person with epilepsy may be protected by the Americans with Disabilities Act, but Schuler declined to make that argument.)
Professional Pointer 3
As illustrated by this case, as well as Echazabal and Schuler -- both summarized in this column -- the results of pre-employment physicals can properly support decisions to deny employment to certain applicants, but employers must exercise caution in their use. Establish consistent standards and procedures regarding what applicant medical information is communicated to the employer, how and when it is communicated, and how decisions are made based on that information. For example, the company in this case might have made a better judgment if it had waited for the medical opinion to be transmitted in writing.
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