CAN AN EMPLOYER REFUSE TO HIRE AN APPLICANT WITH A DISABILITY?

This is a very difficult situation. If a wrong decision is made, costly litigation can ensue. Workplace decisions can no longer be based on workers’ compensation compliance alone, without the risk of employment litigation. Employers and claims professionals require an integrated and holistic approach, including acqiring knowledge regarding federal employment statutes like the Americans with Disabilities Act (and subsequent amendments).

Ultimately, the answer to the question is yes. If an employee is unable to perform the essential functions of the job, an employer may refuse to hire the employee. But in some cases, an employee may be able to perform the essential functions of the job, but in doing so without creating some risk of harm to the employee or others if the employee performs the job. An employer may refuse to hire an applicant with a disability who can technically perform the essential functions of the job, but not without risk of injury, only if the risk posed by the employee in performing the essential functions of the job rises to the level of a “direct threat” and there is no reasonable accommodation that will enable the employee to perform the essential functions of the job. “Direct threat” means a significant risk of substantial harm to the health or safety of the applicant or others that cannot be eliminated or reduced by reasonable accommodation. 29 C.F.R. §1630.2(r)(1995); . EEOC Enforcement Guidance: Workers’ Compensation and the ADA, questions 11 and 12.

This is one reason why developing accurate and thorough job descriptions are essential in many work place settings. Without job descriptions, many employers are unable to accurately articulate what the position’s essential job functions are. Although time consuming, the time spent in developing job descriptions will likely pay dividends in the future.

For more information regarding the ADA or hiring decisions involving disabled applicants, please contact Robert Seybert at rseybert@baylorevnen.com or any of the firm’s employment or workers’ compensation attorneys at (402) 475-1075.