What Happens if You Can’t be Hired Because You are’t fit for Duty?

Many employers, particularly federal law enforcement, have medical standards that they use to disqualify potential employees. To be sure, employers are forbidden from asking questions about a disability in the initial hiring process. However, after an employee has been given an initial offer of employment the employer can ask medical questions. The medical questions must be job related and consistent with business necessity. See EEOC, Enforcement Guidance on Disability-related Inquiries and Medical Examinations Of Employees under the Americans with Disabilities Act (ADA). The EEOC states that generally this means:

[T]he employer must have a reasonable belief based on objective evidence that: 

– an employee will be unable to perform the essential functions his or her job because of a medical condition; or,

– an employee will be unable to perform the essential functions his or her job because of a medical condition; or,   

EEOC, Enforcement Guidance on Disability-related Inquiries and Medical Examinations Of Employees under the Americans with Disabilities Act (ADA).

This means that an employer generally may disqualify an employee if either it believes he cannot perform the essential functions of the job, or he would pose a “direct threat.” Most often, the issue is whether the employee would be a direct threat. 

A direct threat means that there is a “significant risk of substantial harm” to the employee or someone else from working that job. For example, an employee who cannot walk would be a direct threat to himself if he took a job that required going up and down stairs, such as a letter carrier would. 

But federal agency employers often go well beyond this. Frequently federal employers employ various tests that prevent the hiring of people with minor health issues. Unfortunately, this means that persons are told they cannot work for relatively minor health issues. 

Under the ADA, however, the agency must prove that the medical condition presents a “significant risk of substantial harm.” This risk must also not be able to be minimized through reasonable accommodation. In order to do this, the agency must engage in an “individualized assessment.” See Nathan v. Department of Justice, Federal Bureau of Investigation, 113 LRP 40981 , EEOC No. 0720070014 (EEOC 2013). 

In that case, the EEOC held that the employer, the FBI, failed to conduct a proper individualized assessment, stating:

The Agency’s study, which only looked to the range of vision lost by a typical person with monocular vision, plainly failed to examine any of the special qualifications that the Complainant allegedly possessed. Instead, the Agency summarily disqualified the Complainant based on the presumption that no individual with monocular vision can carry out the duties of an SA. [ ]

An appropriate assessment would have closely evaluated the Complainant’s prior experience to determine if such experience indicated an ability to safely perform as an SA or, if past experience was insufficient, provided the Complainant an opportunity to demonstrate how he could safely perform the essential functions of the job because of compensatory skills that he has developed.

Nathan, EEOC No. 0720070014 (EEOC 2013).

Frequently, however, agencies employ medical reviewers who do not understand that these limitations exist. They knock out employees because they might hurt themselves without engaging in the above assessment. Well, that’s discrimination. And too many federal agencies stand by and let it happen.