Direct Threats and the Americans with Disabilities Act

You Asked.BlogQ: I have an employee whose job entails driving a company vehicle. I have been made aware that he takes several medications, including morphine and oxycodone, that may affect his ability to safely drive a motor vehicle. What do I do?

A: I commend you for recognizing that simply terminating him could cause legal problems under the Americans with Disabilities Act. Fortunately, the ADA does provide a course of action for this type of situation. 

Your employee will need to undergo an evaluation that will entail a medical inquiry. Under the ADA, once employment begins, an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity. According to EEOC guidance, “Generally, a disability-related inquiry or medical examination of an employee may be ‘job-related and consistent with business necessity’ when an employer ‘has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat due to a medical condition.’” “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.”

You likely meet the “direct threat” standard outlined by the EEOC. However, we would caution all of our readers to contact MSEC for assistance with this analysis, as you have done. 

The next step is to send the employee to a doctor for a medical evaluation. You will include paperwork that details the employee’s job duties and a narrative explaining the basis for your concern. 

Your employee can take the paperwork to his or her own physician, or you can send your employee to the physician of your choice, provided you pay for the examination. In any event, you will be bound by the opinion of the medical professionals, so as always, it pays to take advantage of MSEC’s guidance every step of the way. 

Send your questions to cgraves@msec.org. Please tell us if you would prefer your identity not be mentioned in our answer.