Wednesday, February 17, 2010

Coming to Terms With ADA

REASONABLE ACCOMMODATION


Here's a question that I read recently: If an otherwise qualified individual with a disability poses a direct threat to employees or others, can the employer take action?

The answer is: Yes.

The fact is that an employer failing to protect his/her workers from safety or health threats may find themselves liable under the Occupational Safety and Health Act, or even applicable state law.

Nothing in the Americans with Disabilities Act prevents an employer from protecting his/her workers. An employer can require that all employees, including those who fall within the definition of a qualified individual with a disability under the ADA, do not pose a direct threat to the health or safety of others.

What defines a direct threat?

Under the Act, direct threat is very narrowly defined. It is a situation that poses "a signficant risk to the health or safety of others which cannot be eliminated by reasonable accommodation." Direct threats can arise in connection with contagious diseases and infections.

One warning, however. When it comes to the subject of direct threat, it is best for an employer to seek advice from a capable attorney well versed in ADA law. Basing a course of action on unfounded fear/uninformed lay opinions, and not on valid facts about any illness or disease, may indeed violate the ADA!