When an employee’s disability poses a threat to themselves or others, can their condition be accommodated? Generally, no; to quote the EEOC, “the ADA permits an employer to require that an individual not pose a direct threat to the health and safety of the individual or others in the workplace.” But what constitutes a “direct threat” under the ADA?
In a recent opinion, Smith v. Newport Utilities (6th Cir. 2025), the Sixth Circuit Court of Appeals agreed with a utility company employer that a bucket foreman employee’s seizures posed a direct threat of harm to himself and others that the employer could not reasonably accommodate under the ADA. Smith, the plaintiff in the case, had a position repairing downed power lines. His team often worked unusual and long hours, often having to work for up to 24 hours straight to respond to extreme weather conditions. Smith began to suffer from seizures, which would cause him to shut down entirely for approximately 90 seconds, in 2010. In 2020, Smith had two on-the-job incidents within months of each other. First, after working all night repairing lines, he suffered a seizure while driving the truck that caused him to swerve out of the lane, which his coworker reported to a supervisor. Five months later, Smith’s team was assigned to repair an elevated powerline. Smith remained on the ground while a coworker went up in the bucket. The coworker spotted Smith laying face down on the ground and called for help. Smith was taken to the emergency room where he was diagnosed with heat exhaustion.
Based on these two incidents, the employer placed Smith on leave and required him to undergo a medical evaluation with the company’s medical review officer. Eventually, Smith was released to work but with significantly reduced hours as a restriction. The employer concluded that a bucket foreman needed to work extended hours as an essential function of the position, and there were no open positions for which Smith was qualified, so the HR VP told him to resign or be fired. Smith resigned and brought suit under the ADA for discrimination.
The lower court held that Plaintiff posed a safety threat in his position and the employer could not reasonably accommodate him, and the Sixth Circuit agreed on appeal. In so doing, the Sixth Circuit observed that the ADA and a relevant regulation define “direct threat” as a significant risk to the health or safety of others, or to disabled individuals themselves, that cannot be eliminated by reasonable accommodation. The regulation also provides four factors for employers to consider in deciding whether a significant risk exists: the “duration of the risk”; the “nature and severity of the potential harm”; the “likelihood that” this harm will arise; and the “imminence” of the harm. In this case, Smith posed a direct threat of harm to himself and others in his position as a bucket foreman. It is an inherently extremely dangerous role that often requires working 24 hours straight, and Smith’s seizures were made worse by sleep deprivation. Although Smith’s doctor suggested he could stay in his position if his employer capped his hours, the court held such a modified schedule would limit an essential function of the job. Additionally, Smith had also had on-the-job incidents, including where he had a seizure while driving and swerved a truck dangerously out of lane. Thus the “significant risk” of harm was observable and highly likely to reoccur – not merely speculative.
The Smith case provides some useful information to employers regarding the application of the “direct threat” analysis. As far as direct threat cases under the ADA go, this was a relatively easy one because the work involved was very dangerous, and it was clear the employee’s disability put himself and others at great risk. Other cases present a closer question. When evaluating whether a particular disability disqualifies an employee for safety reasons, employers should keep several things in mind. First, employers should not assume that a particular disability automatically disqualifies an employee from a particular position for safety reasons. In all cases, employers must conduct an individualized assessment of the level of risk posed by the required job duties and disability-related limitations. Second, it was important to the court in the Smith case that the risk of harm was not merely speculative. Employers should note that direct threat evaluations cannot be based on subjective standards, assumptions or irrational fears. The evaluation should be guided by competent medical evidence. Additionally, although one was not available in the Smith case, employers evaluating whether an employee’s condition may pose a direct threat to safety must also consider and explore whether there is a reasonable accommodation that could eliminate the safety risk. Finally, where, as in the Smith case, the potential harm is extreme even if not necessarily imminent, an employer may be justified in excluding an employee from that position.
– Laura Avery, ADA Coach, Absence and Accommodations Compliance, ComPsych
