Public Health Law Map - Beta 5 - Medical and Public Health Law Site

(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.
Such consideration must rely on objective, factual evidence—not on subjective
perceptions, irrational fears, patronizing attitudes, or stereotypes— about the nature
or effect of a particular disability, or of disability generally.… Relevant evidence
may include input from the individual with a disability, the experience of the
individual with a disability in previous similar positions, and opinions of medical
doctors, rehabilitation counselors, or physical therapists who have expertise in the
disability involved and/or direct knowledge of the individual with the disability.
An employer is also 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 an undue hardship would avert the harm.
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. This determination must be based on individualized factual data, using the
factors discussed above, rather than on stereotypic or patronizing assumptions and
must consider potential reasonable accommodations. Generalized fears about risks
from the employment environment, such as exacerbation of the disability caused by
stress, cannot be used by an employer to disqualify an individual with a disability.
(29 CFR1630, Appendix at 1630.2(r))
N. The Elements of a Communicable Disease Policy
Paradoxically, the more the law stresses individual evaluation, the more the employer
must rely on carefully drafted written policies. Individualized evaluation makes it
easier for the employee to contest the employer’s standards. Although the employer
may ultimately prevail in court, careful adherence to written guidelines can discourage
attorneys from difficult-to-win lawsuits. If this policy is to be credible, it must be
developed before the business is embroiled in controversy over potentially
discriminatory actions against disease carriers.
Following is a framework for a disease control plan based on the analysis suggested in
the Supreme Court decision in Arline. A completed disease control plan must detail the
actual circumstances of the company and diseases that pose a risk in that environment.
There are guidelines for control of tuberculosis (TB) and of bloodborne pathogens, but
other communicable diseases should be considered as well. The medical information
should be based on CDC (Centers for Disease Control and Prevention)
recommendations and the American Public Health Association publication,
Communicable Diseases in Man. The workplace- specific parts of the plan are more
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