EEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.
ADA: Reasonable Accommodation
June 7, 2002
This responds to your letter dated April 23, 2002, asking how federal laws prohibiting employment discrimination would apply to a situation involving one of your employees. According to your letter, the employee is a 70-year-old welder who, over the past several years, has had difficulty working and gets ill during the heat of summer months, even though your company rented a special cooling fan for him and has him sit down when he gets ill. You state that during these summer periods his productivity has dropped below the rate your company requires of all welders. You further state that if another welder had the same productivity problems, he would be reprimanded, but you have been reluctant to take the same action with this employee "due to his age and health." You further state that your company has talked with the employee about reducing his work hours in the summer months, but that he wants to work full-time. You state that you are afraid he will have a heart attack or other physical condition as a result of the hours he works, but that he would be very upset if you reduced his hours.
The Equal Employment Opportunity Commission (EEOC) enforces both the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title I of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C. § 12111 et seq., both of which may apply to the situation you described. The EEOC provides technical assistance concerning these laws. While we cannot make any representations regarding what position the Commission would take if a given matter were to come before it in a future discrimination charge, we can provide some guidance regarding general principles that might apply to the facts as you have described them.
I. AMERICANS WITH DISABILITIES ACT
A. Definition of "Qualified Individual with a Disability"
Title I of the ADA prohibits employers from discriminating against qualified individuals with disabilities. The ADA defines a disability as: (1) a physical or mental impairment that substantially limits a major life activity; (2) a record of a substantially limiting impairment; or (3) being regarded as having a substantially limiting impairment. Whether an impairment substantially limits a major life activity depends on such factors as the length of time that it has prevented or limited the individual's ability to engage in specific "major life activities," such as walking, standing, breathing, and lifting, how long these limitations can be expected to last, and the severity of the limitations. A "qualified" applicant or employee with a disability is one who can perform the essential functions of the position held or desired either with or without accommodation. Whether someone is a "qualified individual with a disability" is a fact-specific inquiry, and your letter does not provide sufficient facts to permit a more specific application of these legal standards to your employee's situation.
B. Reasonable Accommodation
The ADA also requires employers to provide "reasonable accommodations" to qualified applicants and employees with disabilities, when requested, in order to remove workplace barriers and ensure equal opportunity to compete for and perform jobs, unless the accommodation would pose an undue hardship. "Undue hardship" means significant difficulty or expense in light of the employer's resources and the nature and operation of its business.
Even assuming an employee is an "individual with a disability," the ADA does not require that an employer, as a reasonable accommodation, lower production standards that apply to all employees. See EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act (March 1, 1999) (available on our website at www.eeoc.gov) at page 4 (citing 29 C.F.R. pt. 1630 app. § 1630.2(n)). However, the ADA would require an employer to provide a reasonable accommodation, if requested by the employee, to assist a qualified individual with a disability in meeting production standards, as long as the accommodation would not pose an undue hardship.
Your letter does not specify whether or not the employee in question has requested any reasonable accommodation. If no reasonable accommodation has been requested, then you are not required to provide one and may treat an employee with a disability who fails to meet a production standard the same way that you treat other employees who do not meet production standards. If an accommodation has been requested but any available accommodation would pose an undue hardship, or if one has been requested but no accommodation would enable the employee to meet production standards, then you should consider reassignment to a vacant position as the accommodation of last resort. If no vacancy for which the employee is qualified exists, then you may treat the employee with a disability the same way you would treat other employees who do not meet production standards.
C. Direct Threat
Under current Commission regulations, an employer may justify action taken against an individual with a disability, including reducing work hours, where the individual poses a direct threat to the health or safety of himself or others. The term "direct threat" is defined as "[a] significant risk of substantial harm to health or safety of self or others that cannot be eliminated or reduced by reasonable accommodation." 29 C.F.R. § 1630.2(r). A determination that a direct threat exists must be based on an individualized assessment of the employee's present ability to perform the essential functions of the job safely, considering reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. Id. Factors that must be considered include: (1) duration of the risk; (2) nature and severity of the potential harm; (3) likelihood the potential harm will occur; (4) imminence of the potential harm. Id. The availability of any "reasonable accommodation" that would reduce or eliminate the risk of harm must also be considered. See also EEOC Enforcement Guidance: Disability-Related Inquiries and Medical Examinations of Employees Under the Americans With Disabilities Act (July 27, 2000) (available on our website, and also discussing the "direct threat" standard).
Within the next month or so, the United States Supreme Court will likely decide a case involving the issue of "direct threat." See Echazabal v. Chevron, 226 F.3d 1063 (9th Cir. 2000), cert. granted, 122 S. Ct. 456 (2001). The case is expected to clarify whether an employer may consider the risk that an individual with a disability poses to himself or herself, or whether the defense is limited only to risks posed to others. Regardless of the outcome of this case, however, the information in your letter, standing alone, would not appear to support a conclusion that the employee is a direct threat to himself, in that the only potential harm you cite is speculation regarding a future heart attack. (1)
II. AGE DISCRIMINATION IN EMPLOYMENT ACT
The ADEA prohibits an employer from discriminating based on age against persons age 40 or over. Title 29 U.S.C. § 621, et seq.; 29 C.F.R. § 1625.2. Thus, an employer may not limit employment opportunities because of age unless it can show that age is a bona fide occupational qualification (BFOQ). See 29 U.S.C. § 623(f)(1). Your letter states that the employee at issue is 70 years old and that you have been hesitant to take personnel action because of his age, but does not otherwise provide any facts relating to the relevance of his age. The ADEA does not require an employer to refrain from treating an employee over 40 years of age who is not meeting production standards the same way the employer would treat other employees who do not meet production standards. Therefore, you may take an adverse personnel action against an employee without violating the ADEA if the adverse action taken is not based on age but rather based on performance or another legitimate, non-discriminatory reason.
I hope this information is helpful to you. Please note, however, that this letter is an informal discussion of the issues raised in your letter, and is not an official opinion of the EEOC. In addition, our failure to address any other matters that may have been presented in your letter should not be construed as agreement with statements or analysis related to those matters. If you have any questions regarding this letter, please feel free to contact Christopher J. Kuczynski or Jeanne Goldberg at 202-663-4503.
Christopher J. Kuczynski
Assistant Legal Counsel
ADA Policy Division
1. Our analysis of "direct threat" is limited by the facts as set forth in your letter. It is not intended to resolve definitively the issue of whether this employee in fact poses a direct threat to his own health. Moreover, even if an employer cannot satisfy the direct threat standard, it may nevertheless take appropriate action against an employee with a disability who is not meeting production standards in accordance with the principles described in Part I.B of this letter.
This page was last modified on April 27, 2007.
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