You must determine whether an individual with a disability will pose a direct threat to the safety of others on a case-by-case basis and if a reasonable accommodation would mitigate or eliminate the possibility of harm. You also must identify specific conditions or behavior on the applicant’s or employee’s part that constitute the threat. The risk must be current, not speculative or remote. The risk must be based on reasonable medical judgment or other objective evidence, not on subjective perceptions, irrational fears or stereotypes.

Ensure that direct threat assessments are based on current medical knowledge or other reliable evidence. Don’t rely on generalized or frequently mistaken assumptions about the risks associated with certain disabilities.1 Engage in the interactive process with the employee prior to determining that a health or safety risk exists.

Under FEHA, you can refuse to hire an applicant or you can discharge an employee if that individual can’t perform the essential job duties in a safe manner, even with reasonable accommodation. FEHA allows a broader defense than is allowed under the ADA.

You can’t claim that a disabled individual has a condition or disease with a future risk if the condition or disease doesn’t interfere with an employee’s job performance.

1. 2 CCR sec. 11067(c)