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Workers' Compensation and the ADA--Hiring Decisions

Workers' Compensation and the ADA--Hiring Decisions.

In enacting the ADA, Congress sought to address stereotypes regarding disability, including assumptions about workers' compensation costs. An employer cannot refuse to hire a person because it assumes that because of a disability the person poses increased risk of an occupational injury and therefore, increased workers compensation costs. 

An employer can refuse to hire a person with a disability only if the employer can show that the individual would pose a “direct threat” in that position. This means that an employer may not “err on the side of safety” simply because of a potential health or safety risk. Rather, the employer must demonstrate that the risk rises to the level of a direct threat.

Direct Threat
"Direct threat" means 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. The determination that a direct threat exists must be the result of a fact-based, individualized inquiry that takes into account the specific circumstances of the individual with a disability.

In determining whether employment of a person in a particular position poses a direct threat, the factors to be considered are:  
* the duration of the risk;   
* the nature and severity of the potential harm;  
* the likelihood that the potential harm will occur; and   
* the imminence of the potential harm.   

Some state health or safety laws may permit or require an employer to exclude a person with a disability from employment in cases where the ADA would not permit exclusion because employment of the person in the position does not pose a direct threat. Because the ADA supersedes such state laws, an employer may not defend its exclusion of a person with a disability on the basis of such a law.  

Prior Occupational Injuries
Employers may not refuse to hire a person with a disability simply because the person sustained a prior occupational injury. The mere fact that a person with a disability experienced an occupational injury in the past does not, by itself, establish that his/her current employment in the position in question poses a direct threat, i.e., a significant risk of substantial harm that cannot be lowered or eliminated by a reasonable accommodation. 

However, evidence about a person's prior occupational injury, in some circumstances, may be relevant to the direct threat analysis. An investigator should consider the following factors regarding a prior occupational injury in applying the direct threat analysis.

  • whether the prior injury is related to the person's disability (e.g., if employees without disabilities in the person's prior job had similar injuries, this may indicate that the injury is not related to the disability and, thus, is irrelevant to the direct threat inquiry);   
    the circumstances surrounding the prior injury (e.g., the actions of others in the workplace or the lack of appropriate safety devices or procedures may have caused or contributed to the injury);  
     
  • the similarities and differences between the position in question and the position in which the prior injury occurred (e.g., the prior position may have involved hazards not present in the position under consideration);  
     
  • whether the current condition of the person with a disability is similar to his/her condition at the time of the prior injury (e.g., if the person's condition has improved, the prior injury may have little significance); 
     
  • the number and frequency of prior occupational injuries;  
     
  • the nature and severity of the prior injury (e.g., if the injury was minor, it may have little or no significance);   
     
  • the amount of time the person has worked in the same or a similar position since the prior injury without subsequent injury;
     
  • whether the risk of harm can be lowered or eliminated by a reasonable accommodation.  

Example A:
CP applies for a position operating a large saw with R, a lumber mill. After making a conditional job offer, R discovers that CP, who has insulin-dependent diabetes, was seriously injured while operating a similar saw for another lumber mill. The injury was caused by the failure of a safety device and was unrelated to CP's diabetes. R assumes, however, that the injury was related to the diabetes and refuses to hire CP for safety reasons. CP's prior occupational injury, which was unrelated to her disability, does not constitute evidence that she poses a direct threat in the saw operator position because of her disability.

Example B
CP, who has a shoulder disability, applies to R restaurant for the position of bus person which requires frequent carrying of basins full of dirty dishes weighing 40-45 pounds. After a conditional job offer, R discovers that CP has had five serious injuries to his left shoulder while carrying basins full of dirty dishes in other bussing jobs over the past four years. A medical examination and physical fitness test show that the condition of CP's shoulder has significantly deteriorated with each injury. They also show that, if CP carries heavy basins, there is a high probability that his left shoulder will be immediately and permanently injured to the point where his left arm will be useless. Assume that there is no reasonable accommodation that will enable CP to perform the essential functions of the bussing position. The objective medical and other evidence (the number, frequency, nature, and severity of the prior injuries; the similarity of the position at issue to the positions in which the injuries occurred; the progressive deterioration of CP's shoulder with each injury; and the evidence that a further injury will render CP's arm useless) supports a finding that CP's employment in the position of bus person poses a significant risk of substantial harm. The evidence further shows that the risk cannot be lowered or eliminated through a reasonable accommodation. Therefore, CP's employment in the position of bus person poses a direct threat

Example C: 
CP applies for a position as a laborer with R, a construction company. The position requires lifting equipment and other items weighing up to 100 pounds. After making a conditional offer of employment to CP, R requires him to undergo its standard medical examination. As a result, R discovers that CP previously injured his back while working for an automotive repair shop. CP's prior on-the-job injury, which occurred when CP was helping a co-worker push a stalled vehicle, was not serious. CP has completely recovered from the back injury. Nevertheless, R rescinds its offer of employment because it is worried about increased workers' compensation costs and considers CP to be a poor risk for heavy labor.18 CP's prior occupational injury, which was not serious and which occurred in a position involving hazards not present in R's position, does not constitute evidence that employment of CP in the laborer position would pose a direct threat.