UNDER WHAT CIRCUMSTANCES MAY AN EMPLOYER REFUSE TO HIRE AN APPLICANT WITH A DISABILITY?

Employers must be familiar with the Americans with Disabilities Act (ADA) and its subsequent amendments (ADAAA). The focus of the ADA is to prevent employers from discriminating against disabled employees. However, 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, the 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.

For more information regarding the ADA or hiring employees with disabilities, please contact Robert Seybert at rseybert@baylorevnen.com or any of the firm’s employment law attorneys at (402) 475-1075.