The ADA prohibits covered employers from using job qualification standards that screen out, or tend to screen out, individuals with disabilities who are able to perform the “essential functions” of a job with or without “reasonable accommodation.” However, the Act provides that an employer may impose, as a qualification standard, a requirement that an individual not pose a “direct threat” (significant risk) to the health or safety of other individuals in the workplace. In the past, employers often used this rule to justify their refusal to hire job applicants or terminate employees whose own health or safety might be at risk in a job because of their particular disabilities.

In the case against Chevron, a job applicant who had asymptomatic, chronic active hepatitis C was denied a job by Chevron in its coker unit because Chevron believed that his liver might be damaged by exposure to the solvents and chemicals in the unit. The Court rejected what it called Chevron’s “paternalistic” decision, ruling that disabled persons must be afforded the opportunity to decide for themselves what risks to take concerning their own health and safety.

State law also prohibits discrimination against individuals with disabilities. The California Fair Employment and Housing Act (“FEHA”) gives more leeway to employers to refuse to hire disabled workers who might injure themselves on the job because of their disabilities. In order to deny an applicant a job because he might threaten his own health or safety on the job because of his disability, there must be “substantial evidence” of “solid and credible value” to support the finding that the health or safety risk in fact exists.

The California standard, however, does not protect employers. The law that gives the employee the greatest rights, here the ADA, must be applied.

Obviously, the Federal Court’s ruling places employers in the position of potentially being sued by disabled employees for health problems or injuries they suffer or which are aggravated on the job. The decision is at odds with an employer’s obligation to provide a safe workplace. The Court responded to this concern by stating that an employer “would likely” have a defense to such lawsuits on the grounds that it was complying with the ADA when it hired the disabled applicant. Pending further appeal of this case to the U.S. Supreme Court, employers will have to carefully evaluate decisions to reject candidates or remove employees from a job based on a safety risk to the individual caused by his/her disability.

It will be Pacific Bell’s policy to offer all management employees who continue to meet our changing business expectations employment security through reassignment to and retraining for other management positions, even if their present jobs are eliminated. This policy will be maintained so long as there is no change that will materially affect Pacific Bell’s business plan achievement.

In January 1990, Pacific Bell notified its managers that industry conditions could force it to discontinue the policy, but that it would notify them immediately if it determined that it could no longer keep the commitment. Nearly two years later, in October 1991, Pacific Bell announced that it was terminating the policy so that it could achieve more flexibility in conducting its business and compete more successfully in the marketplace. In place of the policy, Pacific Bell offered a new layoff plan which offered a generous severance program.

After considering various legal arguments challenging Pacific Bell’s action, the Court ruled that an employer may unilaterally terminate a policy if: a) it created the policy unilaterally (i.e. with no promise from its employees in return), b) the policy contains a specified condition (i.e. that the policy will cease if some event occurs), c) the condition is one of indefinite duration (i.e. without a date or time certain), and d) the employer terminates the policy after a reasonable time, on reasonable notice, and without interfering with the employee’s vested benefits.

While the Court upheld Pacific Bell’s termination of its policy, the Court’s frequent references to considerations of “fairness” and “reasonableness,” and the case-by-case analysis required to make such assessments, means that employers should exercise a great deal of caution in making, and then retracting, promises of secure employment to their employees. Clearly, if such a decision is made, it minimally is advisable to think through the consequences ahead of time, and provide only written policies with “escape hatches” allowing the employer to make changes. If a change is later made, provide affected employees with written notice of the modified policies and written acknowledgment that, by continuing their employment, they have agreed to accept the policy modifications.

In this case, the plaintiff was a 911 operator who allegedly was groped by a male senior operator while on duty. After an investigation, the alleged harasser resigned and the harassment stopped. The Court found that a single incident of harassment must be extremely severe to support a hostile work environment claim and that this single incident of groping was not severe enough. Therefore, the case was dismissed without a trial.

Data collected by the EDD on form DE542 is to be given to state and local welfare agencies to increase the effectiveness of child support collections. They will likely also be used, however, in the event the EDD audits an employer for compliance with payroll tax withholding and reporting requirements. It is more important than ever to ensure that those individuals providing services to the company, who are classified as independent contractors, meet the tests for that classification. If you have any questions in this regard, contact employment counsel.