Direct Threat John Patrick Evans, Certified Rehabilitation Counselor

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Direct ThreatJohn Patrick Evans,Certified
Rehabilitation Counselor Corporate
ConsultantWashington State Department Social and
Health ServicesDivision of Vocational
RehabilitationEvansJP_at_dshs.wa.gov2003
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Direct Threat

• Direct Threat means a significant risk
  of substantial harm to the health or safety of
  the individual or others that cannot be
  eliminated or reduced by reasonable
  accommodation. The risk need not be
  eliminated entirely to fall below the direct
  threat definition.

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Direct Threat

• Determining whether an individual poses
  a significant risk of substantial harm to
  others must be made on a case by case basis.
  The employer should identify the specific risk
  posed by the individual. For individuals with
  mental or emotional disabilities, the employer
  must identify the specific behavior on the part
  of the individual that would pose the direct
  threat.

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Direct Threat

• An employer is permitted to require that
  an individual not pose a direct threat of harm
  to his or her own safety or health. If
  performing the particular functions of a
  job would result in a high probability of
  substantial harm to the individual, the
  employer could reject or discharge the
  individual unless a reasonable accommodation
  that would not cause undue hardship would avert
  the harm.

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Direct Threat

• An employers direct threat standard must
  apply to all individuals, not just to
  individuals with disabilities.
• The determination that an individual
  poses a direct threat shall be based on an
  individualized assessment of the individuals
  present ability to safely perform the essential
  functions of the job.

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Direct Threat

• An employer is not permitted to deny
  an employment opportunity to an individual
  with a disability merely because of a
  slightly increased risk. The risk can only be
  considered when it poses a significant risk,
  i.e., high probability, of substantial harm
  a speculative or remote risk is
  insufficient.

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Direct Threat

• The assessment that there exists a
  high probability of substantial harm to the
  individual, like the assessment that there
  exists a high probability of substantial
  harm to others, must be strictly based on
  valid medical analyses and/or on other
  objective evidence.

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Direct Threat

• Medical documentation concerning the
  qualification of an individual with a
  disability, or whether this individual
  constitutes a direct threat to health and
  safety, does not mean only information from
  medical doctors.

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Direct Threat

• The employer must be able to show that
  an exclusion of an individual with a disability
  because of risk to health or safety meets the
  direct threat standard when based on the
  most current medical knowledge and/or the
  best available objective evidence about this
  individual.

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Direct Threat

• In determining whether an individual
  would pose a direct threat, the factors to be
  considered include
• The duration of the risk
• The nature and severity of the potential
  harm
• The likelihood that the potential harm
  will occur
• The imminence of the potential harm

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Direct Threat

• Determination must be based on
  individualized factual data, rather than on
  stereotypic or patronizing assumptions and
  must consider reasonable accommodation.
  Generalized fears about the risks from the
  employment environment cannot be used by an
  employer to disqualify an individual with
  disability.

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Direct Threat

• If no accommodation exists that would
  either eliminate or reduce the risk, the
  employer may refuse to hire an applicant or
  may discharge an employee who poses a direct
  threat.