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FEHA clearly provides that employees or applicants aren’t qualified if a disability poses a direct threat to their own health or safety.1 California’s disability regulations require employers to engage in the interactive process prior to determining that an employee’s health or safety is at risk,2 and the EEOC’s regulations on the ADA contain the same provision. The U.S. Supreme Court upheld this interpretation when it ruled that a job applicant wouldn’t be a “qualified individual” under the ADA if the job’s essential duties would pose a direct threat to the individual’s health or safety.
Following a case in which an applicant claimed he was unlawfully denied employment because the employer feared that exposure to refinery chemicals would aggravate his medical condition, the Court determined that the “direct threat to self” defense must be based on a reasonable medical judgment about the specific applicant and an individualized assessment of the actual, not potential, risks and harm. The ADA requires more than “the advice of a generalist and an expert in preventive medicine” to conclude that the individual’s medical condition met the “direct threat” requirements.3
The U.S. Supreme Court cautioned employers to ensure that they based direct threat assessments on individualized assessments and current medical knowledge or other reliable evidence. Don’t rely on generalized or frequently mistaken assumptions about risks associated with certain disabilities.
1. Govt. Code sec. 12940(a)(1)
2. 2 CCR sec. 11067(b)
3. Chevron U.S.A., Inc. v. Echazabal, 536 U.S. 73 (2002)