Monday, July 10, 2006

An Employee's Duty to Disclose a Previously Latent (and Potentially Dangerous) Disability to His Employer

Car_truck_1Here's an interesting decision recently issued by the 9th Circuit concerning not only the obligations an employer has to reasonably accommdate a disabled employee, who until recently has not shown any manifestations of that disability, but also the obligation an employee has to disclose to his employer a previously latent and potentially dangerous disabling condititon.

In Dark v. Curry County, No. 04-36087 (9th Cir., July 6, 2006), Robert Dark, an epileptic, operated heavy machinery without incident for 16 years.  When his medication was adjusted, he suffered a seizure on the job and if it were not for some quick action by a co-worker, there could have been serious injuries to Dark and others. 

What makes this case noteworthy is that apparently Dark knew that there was a good chance of his suffering a seizure at work that day because he suffered an "aura" that morning which meant that he knew that there was a 50% chance that he would suffer a full-blown seizure that day. Nevertheless, he did not alert his employer of this information.

The employer fired Dark because it determined under the direct threat prong of the ADA that he posed a threat to the safety of himself and others.  Overturning summary judgment by the district court, the 9th Circuit found that Dark should be permitted to prove that he could have been reasonably accommodated by either being transferred to a less dangerous job or by allowing him to use sick leave until his medication could be further adjusted.

I think the Court is right in its technical application of ADA law here concerning direct threat and reasonable accommodation, but if Dark knew that there was a significant possibility of his having a seizure and went to work anyway and did not inform anyone, does that not give separate grounds for his being terminated for not being forthright with his employer?  The ADA does not immunize Dark under these circumstances, does it?

To me, then, this case is less about whether this employee deserved the protections of the ADA (which he may or may not be entitled to), and more about the employee's bad judgment in not informing his employer about his potentially danagerous condition which his employer had no reason to know about.

Ross' Employment Law Blog has further analysis of this case.  Ross' discussion of the case points out that it may be that the Court was less concerned about the issues that I highlight because the employer never really got its story straight about why it was terminating Dark in the first place.

But if the employer had been more clear that it was firing Dark not because of his disability, but because of his lack of judgment and irresponsibility in not informing others of his dangerous condition, could he then not be fired consistent with the ADA?  Different result if Dark's seizure ended up leading to someone else's death?

Hat Tip:  Decision of the Day

PS

https://lawprofessors.typepad.com/laborprof_blog/2006/07/an_employees_du.html

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