The Americans with Disabilities Act of 1990 (ADA) and its amendments makes it unlawful to discriminate in employment against a qualified individual with a disability unless an exception applies. One of the rarest exceptions is one that relieves an employer of its obligation to provide a reasonable accommodation because doing so would create a direct threat to the health and safety of the individual and those around them. A recent case involving SkyWest Airlines illustrates a modern application of this rarest of exceptions.

In the case, Zimmerman v. SkyWest Airlines Inc., former employee Zimmerman sued the company for allegedly violating the ADA and the North Dakota Human Rights Act claiming a failure to accommodate, disability discrimination, and retaliation. The court ruled a “legitimate, nondiscriminatory reason” existed for the employer’s decision to terminate Zimmerman because he could not effectively communicate while performing his safety-sensitive job.[i]

After disclosing to SkyWest that he was deaf, Zimmerman initially failed to clarify that face-to-face communication was necessary for effective communication; something that could not always be assured in the ramp agent position. After a potentially serious accident was avoided[ii] SkyWest initiated the interactive process to engage with Zimmerman to determine if a reasonable accommodation(s) could be provided that would allow him to remain in the ramp agent position. After multiple conversations, receiving medical clarification from Zimmerman’s healthcare provider, and the employee’s rejection of an offer of a lateral move to an equivalent position that would consistently allow for face-to-face communication, SkyWest terminated Zimmerman because he could not perform the essential functions of his job without accommodation, and he posed a direct threat to employee safety.

What Does it All Mean?

There are many steps that must be taken before an employer can legitimately claim that an individual cannot perform the essential functions of a position with or without a reasonable accommodation. This is especially true when the claim is also based on the fact that continued employment in the position poses a direct threat to the health and safety of the individual and those around them.

The factors considered as a part of an assessment of ‘direct threat’ are 1) the duration of the risk, 2) the nature and severity of the potential harm, 3) the likelihood that the potential harm will occur; and 4) the imminence of the potential harm. In relying on this rare exception, several key points in the Zimmerman case worked in the employer’s favor and should be noted:

• Despite having failed to initially clarify during the interview process whether Zimmerman could 1) perform the job of a ramp agent; and 2) how he would perform the job, with or without a reasonable accommodation, the employer made every effort to answer these questions once it became aware of the disability-related issues Zimmerman was having in performing the essential functions of the position.
• During the interactive process the employer conducted an individualized assessment, taking into consideration the factors outlined above, and in cooperation with the employee’s healthcare provider, made a reasoned and well-informed decision; and
• Once the employer determined that no effective reasonable accommodation would allow Zimmerman to perform the essential functions of the ramp agent job, it proposed a neutral lateral move that would eliminate any safety concerns and allow Zimmerman to continue working. This offer, and rejection of the offer by Zimmerman, were significant to the court.

[i] Hired as a part-time ramp agent, Zimmerman worked for a very short period before it became apparent a previously disclosed hearing disability impacted his ability to perform the essential functions of the job which included being able to effectively communicate with agents on the ramp.

[ii] Zimmerman almost ran over his supervisor with a belt-loader because he was unable to hear her shouts for him to stop.