Revisiting the direct threat defense under the ADA

By Kathy Neal

One of the defenses available to an employer under the Americans with Disabilities Act (ADA) is the idea that an accommodation of a qualified individual with a disability cannot be made when the employee poses a “direct threat to the health or safety” of themselves or others. A “direct threat” involves a significant risk of substantial harm to the health or safety of the employee or others that cannot be eliminated or reduced by a reasonable accommodation. A recent case in Oklahoma involved an employee with epilepsy who worked in a plant that manufactured ceramic tile products.

Hiring and seizures

Corey Burns was diagnosed with epilepsy at age 19 and experienced seizures as part of his condition. When he interviewed with Dal-Italia, he informed the employer he suffered from seizures but was on medication. He was subsequently hired as a press operator and worked with machines that formed tile pieces.

Burns’ epilepsy was such that he always had advance notice of the oncoming seizure, consisting of strange smells and dizziness. If his seizure was “petit mal,” he did not require significant recovery time.

Burns had three or four seizures while working as a press operator. His first seizure on the job occurred about a month into his employment. Burns felt the seizure coming on and sat down on a stair near his station on the line. His supervisor noticed what was happening and sat with Burns for the minute and a half that the seizure lasted. Burns had a second “medium sized” seizure at work about a month later. In that case, he sat down on the floor for about 10 minutes.

Burns later requested a transfer to the glaze line because the pay was higher. His request was granted, and his new supervisor knew about his epilepsy. Burns soon was promoted to a lead position. During this time, he was experiencing one to four seizures per month of both the “petit mal” and the “grand mal” variety. He requested and was granted Family and Medical Leave Act leave for the recuperative time required after his seizures.

After two years, Burns stepped down from his lead position because he was concerned that his epilepsy was affecting his ability to keep the tile quality up to par. A couple of years later, however, Burns was restored to his lead position when he was transferred to another shift.

After being transferred to the new shift, Burns experienced a seizure. Another employee noticed Burns was dizzy, then saw him go down on one knee. The supervisor called “Code Orange,” meaning a worker was down, and an ambulance was called. The seizure lasted about a minute and a half. By the time the ambulance arrived, Burns had recovered, explained his condition to the ambulance personnel, and walked to the gurney. He was released at the emergency room. Burns testified he was afraid that if he did not go to the hospital his employer would hold his refusal of treatment against him.

After the ambulance incident, the employer’s managers discussed whether Burns could work safely on the line. On the day following the incident, Burns called to take FMLA intermittent leave from work to recover from his most recent seizure. On the second day after the incident, Burns went to work to attend a plant-wide meeting. He was pulled aside and told he could not go back to the production floor and there was no other position for him. The manager who spoke to Burns offered him paperwork for short-term disability. When he said he did not have a short-term disability, the manager sent him home.

ADA lawsuit filed

Burns sued Dal-Italia under the ADA in federal court in Muskogee, OK. The employer argued that Burns posed a direct threat to the health or safety of himself or others.

The court noted that its job was not to independently assess whether it believed the employee posed a direct threat, but to determine whether the employer’s decision was objectively reasonable. ADA regulations provide that the determination of whether an individual poses a direct threat must be based on an individualized assessment of the employee’s present ability to safely perform the essential functions of the job. Under the ADA regulations, this assessment must be based on a reasonable medical judgment that relies upon the most current medical knowledge and that considers: 1) the duration 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. The court also noted that the employer bears the burden of proving the plaintiff posed a direct theat.

After weighing the evidence, the court concluded that Dal-Italia failed to establish Burns posed a direct threat. The court was influenced by the fact that Burns had suffered from seizures for 20 years and had worked for his employer for seven years in various jobs with increasing responsibility, even though he had suffered seizures on the job throughout his employment. The court said nothing in the nature or severity of the last seizure should have altered Burns’ ability to safely perform the work that he had performed safely for seven years. The court noted that “some level of risk existed at all times during Plaintiff’s employment but the evidence also indicates Plaintiff never suffered a seizure without warning and did not lose consciousness or awareness during the seizures.”

Where did the employer go wrong?

In this case, the employer erred by not being proactive. The court reasoned that if the company truly believed Burns posed a direct threat to safety, it would have taken action earlier. After all, Burns had experienced multiple seizures over the course of his seven years of employment with Dal-Italia. The employer had ample opportunity to request and obtain medical documentation regarding Burns’ ability to safely perform his job. Suddenly, what appeared to have been an “ordinary” seizure for Burns became a large issue for the employer.

While the “direct threat” defense can make sense in the right situation, an employer must be sure it has appropriate medical documentation when making an employment decision on this basis alone.

  • Burns v Dal-Italia, LLC, 13-CV-528-KEW (E.D. Okla. 1/22/16)