Safety Concerns Did Not Block ADA Claim

By Kraig M. Schutter January 20, 2021
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a welder at work

​A worker who was fired over safety concerns once she started having occasional, brief seizures may proceed to a jury trial on her Americans with Disabilities Act (ADA) claim, a federal district court in Kansas ruled. According to the court, the safety concerns arguably weren't sufficiently objective.

The plaintiff worked for more than a decade for Metal-Fab Inc., a metal fabrication company. She worked as an operator of fabrication machines and as a floater performing miscellaneous tasks as needed in other departments. In 2018, she began suffering occasional seizures lasting less than a minute. She never fell during her seizures, but she could become disoriented, lose her train of thought, stare, grind her teeth, grip objects with her hands and suffer bladder incontinence. According to the plaintiff, "it was like daydreaming."

Metal-Fab had the plaintiff's doctor review the job description, watch a short video of the work environment and indicate whether the plaintiff could perform the work with or without reasonable accommodation. Her doctor responded that the plaintiff was permanently restricted from welding and that she could work with machines only so long as they were guarded with safety devices. Metal-Fab fired the plaintiff based on its concern that her medical condition prevented her from working safely in an industrial setting. She sued under the ADA. 

Metal-Fab moved for summary disposition of the lawsuit on the grounds that the plaintiff's medical condition prevented her from performing essential job functions—specifically, that her condition posed a direct threat of harm to herself and to her co-workers for which no accommodation was available. The company asserted that the plaintiff could not be around metal flashes produced by welders in her work vicinity, and that the potential for the plaintiff to lose consciousness near dangerous machinery, metal shards and forklifts posed a substantial risk of harm to herself and other workers.

The district court denied Metal-Fab's motion for summary judgment. 

As to the issue of welding flashes, the court noted that the plaintiff's doctor restricted her from welding but did not impose any restriction on the plaintiff being in the vicinity of welding flashes produced by co-workers. The court also explained that existing or available welding curtains could remedy the apparent problem in any event. 

With regard to the potential for the plaintiff to lose consciousness as a fabricator working around machinery or as a floater transitioning between departments, such that she would cause harm to herself or others, the court held that the company may not be able to prove its contention through objective facts. Referencing the ADA's regulations, the court explained that an employer claiming a direct-threat defense must consider the disabled employee's "present ability" to perform safely based on "reasonable medical judgment … or other objective evidence."

The court held that the only medical evidence in the record came from the plaintiff's doctor, who stated that she could presently work around machinery so long as it was appropriately guarded. The court noted that there was no evidence from any medical professional indicating that her condition posed an actual risk of accident or injury with forklifts or any other aspect of her work assignments. In short, the court determined that Metal-Fab's assessment of the risk of harm arguably was based on subjective conjecture—not objective proof. 

Bailey v. Metal-Fab Inc., Dist. Court, D. Kansas, No. 19-1098-JWB (Oct. 15, 2020).

Professional Pointer: This case demonstrates how important it is for employers to rely on objective facts when making employment decisions under the ADA.

Kraig M. Schutter is an attorney with Masud Labor Law Group, the Worklaw® Network member firm in Saginaw, Mich.

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