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Can an employer refuse to hire an employee whose disability would present a health risk to himself or others?

Yes, an employer does not violate the ADA if the employer refuses to hire an employee who poses a direct to others or himself on the job. In Chevron U.S.A. v. Echazabal (2002), the U.S. Supreme Court unanimously ruled that an employer did not violate the ADA when it refused to hire a former employee whose disability (hepatitis and liver problems) would be exacerbated by exposure to toxins in the workplace. The Court reasoned that the direct-threat defense articulated in federal regulations should also extend to workers who posed a danger to themselves. The Court did say that the direct-threat defense must be based on reasoned medical judgment and should not used as a guise to discriminate against disabled workers who don't truly pose a threat at all.

The Supreme Court ruled, in a case involving extremely nearsighted airline pilots, that if an otherwise disabling condition could be corrected so an employee could perform his or her duties, then the employer could not discriminate against said employee (iStock).

The Supreme Court ruled, in a case involving extremely nearsighted airline pilots, that if an otherwise disabling condition could be corrected so an employee could perform his or her duties, then the employer could not discriminate against said employee (iStock).

Does the ADA prohibit disability-based harassment in the workplace?

Yes, employees can sue for disability-based harassment under the Rehabilitation Act (if they are federal employees) and the ADA. To prevail on a disability harassment claim, an employee must show: (1) that he or she is disabled within the meaning of the law; (2) that he or she was subjected to a hostile workplace environment; and (3) that hostility was directed at the employee because of his or her disability.

How did Congress change the ADA in 2008?

Congress passed the ADA Amendments Act of 2008 to broaden the scope of the law's protection. The United States Supreme Court had narrowed the law's protections in a couple of its rulings: Sutton v. United Airlines (1999) and Toyota Motor Manufacturing v. Williams (2002). In Sutton, the Court had ruled that if a disability could be corrected or mitigated, that prevented the condition from being considered a true disability that substantially limited an employee. The case involved two airline pilots who were very near-sighted.

In Williams the Court ruled that a disability had to be substantially limiting by severely restricting a major life activity that was of central importance to a person's daily life—not something that simply prevent them from performing certain tasks on the job.

The ADA Amendments Act of 2008 was introduced in order, as the sponsor of the legislation said, "to restore the protections" of the original ADA.

Are there other laws that allowed injured employees to receive time off from work?

Yes, the Family and Medical Leave Act of 1993 (FMLA) entitles a worker up to 12 weeks of work leave for a serious health condition that makes the employee unable to perform the functions of his or her job. FMLA leave is either unpaid or paid at the employer's discretion.

For what other reasons can an employee take FMLA leave?

FMLA leave is also available when a parent needs to take care of a newborn child, recent placement of an adopted child in the employee's home, or to care for an immediate family member (spouse, child or parent) who has a serious health condition.

What employers are obligated to follow the FMLA?

Employers who employ 50 or more full-time employees are subject to the FMLA. Additionally, a worker must have been employed for at least a year and worked at least 1,250 hours for that employer during the preceding 12 months to qualify for FMLA leave.

LegalSpeak: Chevron U.S.A. v. Echazabal (2002)

The direct threat defense must be "based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence," and upon an expressly "individualized assessment of the individual's present ability to safely perform the essential functions of the job," reached after considering, among other things, the imminence of the risk and the severity of the harm portended. 29 CFR § 1630.2(r) (2001). The EEOC was certainly acting within the reasonable zone when it saw a difference between rejecting workplace paternalism and ignoring specific and documented risks to the employee himself, even if the employee would take his chances for the sake of getting a job.

 
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