June 11, 2002 
No. 2002-10

On Monday, June 10, 2002, a unanimous Supreme Court ruled that the Americans with Disabilities Act (ADA) does not grant individuals a right to jobs that jeopardize their health. Chevron U.S.A. Inc. v. Echazabal. According to the Supreme Court, an employer may decline to place an individual in a position that poses a direct threat to him, even if the individual is willing to take his or her chances.

With this ruling, the Supreme Court reversed yet another decision by the U.S. Court of Appeals for the Ninth Circuit, which oversees Oregon and Washington. The Ninth Circuit had ruled that the direct threat defense applies only to situations where an individual's health problems posed a direct threat to others.

This case involved a worker with a well-documented, but asymptomatic case of chronic, active hepatitis C, a progressive condition that can lead to cirrhosis, liver failure and death. The worked risked further liver damage the longer he worked around the chemicals and toxins at the plant.

The worker was employed by a contractor at the Chevron refinery. The worker twice applied, but was rejected for direct employment by Chevron because he did not pass the company's physical. After the second rejection, Chevron then told the contractor that the worker could no longer work at the refinery.

Our recommendations:

There is no question that under the ADA employers may now consider whether an employee's disability poses a direct threat not only to others but also to him or herself. The standards for applying the direct threat defense, however, are not altered by this ruling. The threat must be actual and direct, and it should be well-documented not theoretical. Even with this ruling, an employer who asserts the direct threat defense should be prepared to litigate.

If you have any questions, please contact us.

Jeff Chicoine jchicoine@nsslaw.com 
Wayne Landsverk wlandsverk@nsslaw.com 
Verne Newcomb newcomb@nsslaw.com 
Jack Schwartz schwartz@nsslaw.com 
Rick S. Pope rpope@nsslaw.com 
Brent H. Hall bhall@nsslaw.com 
Thomas Bahrman tbahrman@nsslaw.com

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