The general policy of the employer was that a person could not work in a “safety sensitive position” – defined as a position where the employee had performance responsibilities such that there was a possibility of a direct and significant risk of injury to oneself or to others if one was impaired – if one’s faculties were impaired. The arbitrator in effect concluded that because there was no available testing method to accurately determine the level of impairment caused by lawful cannabis use at any point in time, there was no effective reasonable accommodation that would permit a legitimate user of medical cannabis to work without constituting an “undue hardship” – a direct and significant risk of injury to the worker or to co-workers.42 USC § 12113 (a)creates an affirmative defense to a complaint of employment discrimination for a “qualification standard” which is “shown to be job related and consistent with business necessity, and such performance cannot be accomplished by reasonable accommodation." 42 USC § 12113 (b) and a unanimous United States Supreme Court in Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002)provides that a qualification may include a “requirement that an individual shall not pose a direct threat to the health or safety of [the individual or] other individuals in the workplace.”

Children, especially younger children, might potentially be contagious for longer periods. CDC is studying the virus and its capabilities to try to learn more and will provide more information as it becomes available.”).5Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380 (3d Cir. 2002) (“[A] temporary, non-chronic impairment of short duration is not a disability covered by the ADA.”).6See 42 U.S.C. §12113(b); H.R. Rep. No. 101-485, pt. 3, at 34, 45-46 (1990) (citing School Board of Nassau County v. Arline, 480 U.S. 273, 287, fn16 (1987) (Footnote 16 of Arline states in part that “a person who poses a significant risk of communicating an infectious disease to others in the workplace will not be otherwise qualified for his/her job if reasonable accommodation will not eliminate that risk.”).7EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, 8 FEP Manual (BNA)405:7461, 7468-69 (1997).

Specifically, the ADA allows an employer to have a “qualification standard” that includes “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.” 42 U.S.C.A. § 12113. Under this qualification standard, an employer may require all in-person employees be vaccinated, in order to avoid the “direct threat” of contracting or spreading COVID-19, provided there are no other reasonable accommodations the employer could adopt to prevent COVID-19.But, even though an employer may require vaccines in some circumstances, there are caveats.

Nall v. BNSF Railway Co., 912 F.3d 263 (5th Cir. 2018)ADA-Direct Threat-Objectively Reasonable Standard. BNSF Railway Co., 912 F.3d 263 (5th Cir. 2018)Under the ADA’s direct threat proviso, 42 U.S.C. § 12113(b), an employer may reject a disabled person who would present a direct threat to the health or safety of other individuals in the workplace because of that person’s impairment. In this case, a railroad refused to allow an employee to return to his job as a trainman because the railroad believed his impairment,Parkinson’s disease, would affect his balance and reaction time and would make his working as a trainman unsafe.

An attorney working for the EEOC should also recognize that employers that employ a person with a present prescription for an opioid medication can, consistent with the mandate that medical inquiries of employees be “job-related and consistent with business necessity,” seek medical information regarding “fitness for duty.” 42 USC § 12113(b). Similarly, information like “what the precise prescription – what, how much and how often” would appear to me to be mandatory for the analysis called for by 49 CFR §§ 40.

Workplace safety is a legitimate business reason for terminating an employee who poses a direct threat to health or safety. See 42 U.S.C § 12113. Employers can make inquiries, or require medical examinations, where the employer reasonably believes that such inquiries are necessary to determine whether the employee is fit for duty and whether the employee poses a direct threat.

While the employer can ask applicant to show how s/he might lift a 25 pound box and carry it 20 feet it cannot ask if there are any reasons why s/he would not be able to do so.Employers rejecting applicants who cannot physically perform key job functions must show that rejecting the applicant on this basis is “necessary to safe and efficient job performance to survive a Title VII challenge” Dothard v. Rawlinson 97 S.Ct.2729, 2728 (1977). An employer may require that a candidate or employee not “pose a direct threat to the health or safety of other individuals in the workplace” 42 USC Sec. 12113(b). A direct threat, according to the EEOC’s ADA Enforcement Guidance, occurs when “the individual poses a significant risk of substantial harm to him/herself or others and that the risk cannot be reduced below the direct threat level through reasonable accommodation”.

The ADA also authorizes an employer to exclude an individual from a position if he or she poses a “direct threat,” which is defined as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 42 U.S.C. § 12113(b); 29 C.F.R. § 1630.2(r). The determination of whether an employee poses a direct threat must be made on a case-by-case basis and not based on generalization or stereotypes.

Grounds: Church school allegedly fired teacher with narcolepsy because she threatened to take legal action. ADA religious exemption, 42 U.S.C. § 12113(d), did not apply to the present case because the claim did not involve a partiality for employees of the same faith. First Amendment implies a safe harbor for places of worship to make employment decisions about staff free from judicial intrusion.

Outcome on Appeal: Affirmed [defendant]. Grounds : District court erred in holding that where an employee issues a threat of physical harm, he or she is as a matter of law not a "qualified individual" by operation of the "direct threat" defense (42 U.S.C. § 12113(a)). "Direct threat" applies only to cases where the employee challenges allegedly discriminatory application of qualification standards, as opposed to routine disparate treatment (29 C.F.R. 1630.15(a), (b)).