Eighth Circuit Upholds ADA Direct Threat Defense for Safety-Sensitive Position

Ross Christensen had worked as a conductor for Union Pacific for more than ten years when he suffered an ischemic stroke at home in 2015. Within days, most of Christensen’s symptoms had resolved, and his treating neurologist cleared him to return to work less than two months later.

Before returning to work, Union Pacific required Christensen to submit to a medical fitness-for-duty evaluation. Two Union Pacific physicians reviewed Christensen’s medical records and concluded he would need at least one year of sudden-incapacitation restrictions, prohibiting him from operating company vehicles and machinery and preventing him from working as a conductor while the restrictions remained in place. Christensen did not challenge the reasonableness of the initial one-year minimum restriction. Union Pacific granted Christensen medical leave of absence, but over that time, Union Pacific changed its practice based on updated scientific information about the frequence of seizures after strokes and Federal Motor Carrier Safety Administration (FMCSA) guidance that commercial drivers who had suffered a cortical stroke and/or intracerebral hemorrhage should be prohibited from driving commercial vehicles for at least five years.

Christensen never returned to work as a conductor and brought a disparate-treatment claim under the Americans with Disabilities Act (ADA) against Union Pacific.

Background Law

To establish an employer's liability on an ADA disparate treatment claim a plaintiff must demonstrate: (1) he is a disabled person as defined by the ADA, (2) he is qualified to perform the essential functions of his job with or without reasonable accommodation, and (3) he suffered an adverse employment action because of his disability.

But the statute recognizes a “direct threat” defense to disparate treatment claims, where the employer can demonstrate that the employee poses “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C.S. § 12111(3). To establish the defense, the employer must show its decision that the employee posed a direct threat was: (1) the result of an individualized assessment, (2) objectively reasonable, and (3) based on the most current medical knowledge and/or on the best available objective evidence. The individualized assessment must also consider: (1) the duration of 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. 29 C.F.R. § 1630.2(r).

Arguments and Holdings

The District Court granted Summary Judgment in favor of Union Pacific, noting that although the likelihood of a seizure may have been relatively low, by its nature, that threat is always imminent, and the nature and severity of the potential harm was extreme. The District Court further noted that that the direct-threat defense strikes a delicate balance between the important goal of prohibiting discrimination and the need to protect others from significant risk, and that in this case, Union Pacific would have to expose itself to substantial tort liability in the future to avoid an ADA claim being brought against it here.

Christensen appealed arguing that a jury could find Union Pacific failed to conduct an individualized assessment plan based on its reliance on the FMCSA guidelines, contending that reliance on the guidelines was not objectively reasonable, pointing to the fact that his personal physicians had cleared him.

The Court of Appeals upheld the District Court’s Order granting Summary Judgment, finding that all the elements of direct threat were met in this case: The assessment included multiple rounds of fitness-for-duty evaluations that involved comprehensive review of Christensen's medical records, his condition, and his job duties. Union Pacific relied on the opinions of multiple physicians and on an extensive medical record in reaching its decision. And its decision was objectively reasonable in that Union Pacific acted on the most current medical knowledge and on the best available objective evidence, based on the FMCSA's guidelines.

Takeaways regarding the Direct Threat Affirmative Defense.

1. Elements: In order to establish the Direct Threat affirmative defense against disparate treatment claims an employer must establish: 1) the work at issue is a safety-sensitive position that poses a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation, 2) the decision to impose restrictions was based on an individualized assessment that considers the duration, nature, severity, likelihood, and imminence of the potential harm, 3) the decision was objectively reasonable, and 4) the restrictions are based on current medical knowledge or the best available objective evidence.
2. Deference to Employer Physicians: Employers can rely on the assessments of their own evaluating physicians over the conflicting opinions of an employee’s treating physicians, provided the employer's physicians conduct a comprehensive review of the medical records and job duties. To overcome summary judgment, a plaintiff cannot merely rely on conflicting medical opinions but must present affirmative expert testimony establishing that the employer's medical determination was objectively unreasonable.
3. Permissible Use of External Safety Guidelines: Employers may utilize established external safety frameworks, such as the FMCSA guidelines, to measure risks in safety-sensitive positions. Utilizing these guidelines does not invalidate a legally required individualized assessment, where the employer has reviewed the employee's medical files and determined that the guidelines apply.
4. Application favors protecting others from significant risk: Employers are not liable under the ADA for making cautious or conservative medical judgments regarding direct threat, as long as those judgments are objectively reasonable and based on individualized, evidence-based assessments.