Court decisions narrow scope of disability act.

Byline: On the Job by Bureau of Labor & Industries For The Register-Guard

Q: It seems that every week we get new court decisions about the ADA and what it means for employers. What are the latest developments?

A: The federal Americans With Disabilities Act is still a relatively new law that continues to develop in the courts. The ADA was enacted by Congress and signed into law by former President Bush in 1990.

The Oregon statutes on employees with disabilities were amended in 1997 and closely mirror the language of the ADA.

Federal and Oregon disability laws prohibit employers from discriminating against job applicants and employees with disabilities.

These laws also require employers to make reasonable accommodations for employees with disabilities who are qualified to perform the essential functions of the job.

However, an employer isn't required to make an accommodation if it would be an "undue hardship." And the employer isn't required to retain a disabled employee who poses a "direct threat" in the workplace.

The latest ADA decision from the U.S. Supreme Court, Chevron USA Inc. vs. Echazabal, has to do with the application of the "direct threat" defense.

In this unanimous decision issued on June 10, the court held that an employer may consider whether a worker's disability poses a direct threat to the worker's own health.

The employee in this case, Echazabal, was working for an independent contractor at a Chevron oil refinery. He applied to work directly for Chevron and was offered a position, conditioned on his passing a physical exam.

When the doctors reported to Chevron that working in the refinery would aggravate the employee's liver disease, Chevron withdrew its job offer and the employee sued under the ADA.

Chevron raised the defense, allowed under a U.S. Equal Employment Opportunity Commission regulation, that Echazabal's disability would pose a direct threat to his health.

The Ninth Circuit Court of Appeals (which covers Oregon and other Western states) rejected that defense in 2000, deciding that under the ADA an employer may only consider whether an employee poses a threat to others in the workplace.

The Ninth Circuit concluded that the EEOC exceeded its authority in issuing its rule and that employers could not deny employment based on "paternalistic concerns" about an employee's health.

This week, however, the U.S. Supreme Court overturned the Ninth Circuit decision, supporting the EEOC regulation and allowing the "threat-to-self" defense.

Employers should note that this defense only applies when an employee's disability creates an imminent risk of serious harm in the workplace and not simply when there is a possible risk. Employers should rely on medical professionals for this determination rather than making assumptions about an employee's disability.

The Supreme Court's decision suggests that it is critical for employers to maintain detailed position descriptions for each job category so that a doctor evaluating an employee or potential employee can provide an "individualized assessment" of the individual's ability to perform the essential job functions.

Also, an employer may be required to make a reasonable accommodation such as reassigning a non-essential job function if doing so would ameliorate the risk posed by the employee's disability.

The U.S. Supreme Court decided in April 2002 that disabled employees aren't automatically entitled to premium assignments intended for more senior workers.

In U.S. Airways Inc. vs. Barnett, the court held that the obligation to make reasonable accommodations doesn't always trump an established seniority system. Rather, an employer may follow its seniority rules, except where an employee presents evidence of "special circumstances."

And in January 2002, the Supreme Court issued another decision that narrows the definition of "disability" under the ADA.

The court ruled in Williams vs. Toyota Motor Corp. that the proper test for whether a worker is disabled involves whether the worker's impairment affects tasks "that are of central importance to most people's daily lives," such as bathing or brushing one's teeth.

Williams' carpal tunnel syndrome prevented her from performing a specific job duty, but the court concluded that this didn't amount to a protected disability, as she was still able to perform regular activities of daily life.

On The Job is written by attorney Dan Grinfas of the Oregon Bureau of Labor and Industries. The column answers questions about employment law. To contact BOLI, call [phone], or write to BOLI, 800 N.E. Oregon St., No. 32, Portland, OR 97232.