Accommodation Denied: Employee Told to Retire or Face Termination

Dangerous work and employees with disabilities aren’t always a bad mix. In fact, these employees often can do a stellar job, sometimes with the help of a job accommodation.

However, when a disability significantly threatens safe job performance regardless of whether a reasonable accommodation is provided, an employer can justifiably remove the employee from the position.

A recent decision from a federal appeals court demonstrates the point. It also helps HR pros find the line where the danger becomes severe enough to permit job removal – or deny the job in the first place.

Long Hours, Dangerous Work

In 1988, Larry Smith started working for Newport Utilities in Tennessee. He began in the stock room, and by 2014, he had worked his way up to a position as a bucket foreman.

It wasn’t an easy job. In fact, there was no dispute that he did hard and very dangerous work.

Smith was part of a two-person team that maintained and fixed electrical facilities in the field. The team worked with potentially deadly live powerlines, including when the weather was very bad. Team members climbed poles and operated bucket trucks to reach elevated lines.

Both team members needed to be able to drive the truck and hop into the bucket to get the work done. Teams also worked unusual hours and had to be ready to go. They sometimes needed to report for work with just 30 minutes’ notice, and it was not unusual to work for 24 straight hours.

‘Stare Seizures’ Begin

Around 2009, Smith started having what he called “stare seizures.” During these episodes, which lasted up to 90 seconds, he did “not know what was happening around him.” He was not able to predict when a seizure was about to take place.

Somewhat curiously, it took about 10 years for Newport Utilities to find out about Smith’s seizures. But in March of 2020, after working all night fixing lines, Smith had a seizure while driving a work truck and swerved a bit out of his lane. His partner reported the incident to a supervisor, who told Smith to see a doctor.

Smith’s doctor cleared him to go back to work, but about five months later, another incident occurred. This time, a co-worker up in a bucket saw Smith lying face down on the ground below him. He thought Smith might be dead, and an emergency call was placed. Doctors diagnosed him as having heat exhaustion and released him to get back to work.

Employer Places Worker on FMLA Leave

But that incident scared Newport enough to place Smith on FMLA leave. Smith’s doctor completed paperwork that took Smith out of work for the short term.

A few months later, doctors said Smith could return to work – but only if he worked limited hours and did not operate any company vehicles or powered equipment. A doctor later removed the driving restriction but increased the hours restriction – and also said the requirement that he perform standby work needed to be eliminated.

In Newport’s view, that was too much to ask. It viewed the ability to work extended hours on short notice as essential to Smith’s job.

Employer Explores Accommodation Possibility

Newport looked at whether it could provide the accommodation of transferring Smith to another job, but it found that he did not qualify for any open positions. It ultimately told him it would let him go if he did not retire. Given this choice, Smith chose retirement.

He sued Newport under the ADA, accusing it of illegally discriminating against him based on his disability.  He said Newport did not show he posed a direct safety threat — and that even if he did, it could have provided an accommodation that would have eliminated it. He also said Newport should have done more to discuss a possible accommodation with him.

 A lower court ruled against Smith, and he appealed.

Why Court Sides With Employer: 4 Key Reasons

The U.S. Court of Appeals for the Sixth Circuit upheld the ruling in Newport’s favor.

The appeals court explained that under the ADA, employers can require that an applicant or employee not pose a direct safety threat to themselves or others. Essentially, the statute says that an applicant or employee who poses such a threat is not qualified for the job.

Smith said Newport did not show he posed a direct threat of harm, but the appeals court disagreed.

The court listed four factors that are used to decide if there is a direct threat:

• The duration of the risk.
• The nature and severity of the potential harm.
• The likelihood that the harm will be realized.
• The imminence of the harm.

The appeals court said all four factors supported the conclusion that Smith posed an unacceptable direct threat. The job was very dangerous, it noted, and every doctor who evaluated him supported the conclusion that Smith created a risk of harm at work.

No Duty Under ADA to Remove Essential Job Functions

The court also rejected Smith’s contention that Newport could have provided an accommodation that would have eliminated the threat. But the accommodation duty does not go so far as to require employers to excuse the performance of essential job functions.

Here, working overtime and being ready to go on a standby basis were essential job functions that Smith could not perform safely, the court said. Excusing performance of those duties was not an accommodation that was required under the law, the court said.

Finally, Smith said Newport should’ve transferred him as an accommodation. But he was not qualified for any of the four open positions Newport looked at in its attempt to move him to a new post.

The appeals court upheld the lower court’s decision in favor of the employer.

As far as direct threat cases under the ADA go, this was a relatively easy one: The work involved was very dangerous, and it was pretty clear that the employee’s disability put himself and others at great risk.

Direct Threat and Accommodation: 6 Tips

Other cases present a closer question. Here are tips for HR to use when evaluating whether a particular disability disqualifies applicants or employees for safety reasons:

• Don’t assume that a particular disability or diagnosis automatically disqualifies an applicant or employee from a particular position for safety reasons. In all cases, it is critically important for employers to conduct an individualized assessment of the level of risk that is created by the combination of required job duties and disability-related limitations.
• Rely on competent medical evidence to guide decisions relating to safety threats.
• Remember that direct threat evaluations cannot be based on subjective standards, assumptions or irrational fears.
• Keep in mind that the four factors included in the bulleted list above need to be carefully and thoughtfully applied when evaluating whether an unacceptable safety risk exists.
• Be aware that the provision of a reasonable accommodation can eliminate an unacceptable safety risk. Employers must evaluate the safety issue with the understanding that the provision of an accommodation may be required.
• Remember that if the potential harm is extreme, employers can justify exclusion even if it is not imminent.

Smith v. Newport Utilities, No. 24-5502, 2025 U.S. App. LEXIS 4600 (6th Cir. 2/27/25).