protection for these workers might have been available as a part of the accommodation requirement under the ADA and related fair-employment practice laws at the state level. But employers have successfully argued that there is a tension between the legal obligation to continue the employment of employees who are disabled and the obligation to provide a safe workplace for all employees, mandated by OSHA. Employers can defend themselves from liability under the ADA if they can show that the work sought by the person with a disability is a direct threat to the safety of employees and if alternative accommodation would not eliminate the safety concern. The statute defines direct threat to mean “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation” (42 U.S.C. § 12113[b]). The EEOC regulations provide that the significant risk must be a “significant risk of substantial harm” to either the individual worker or to others, based on an assessment of “the individual’s present ability to safely perform the essential functions of the job” (29 C.F.R. § 1630.2[r]).
Where the work is viewed as potentially dangerous to the employee, the employer may be relieved of its obligation to continue to employ the aging worker at all. EEOC regulations specifically allow an employer to exclude a susceptible worker from a job that may put him or her at significant risk. In Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002), the U.S. Supreme Court relied on OSHA to uphold this regulation. In this case, Chevron’s doctors said that the plaintiff Echazabal’s liver disease (hepatitis C) would be exacerbated by continued exposure to toxins at the oil refinery. Chevron argued that its obligation under OSHA to provide a safe workplace was controlling, and that therefore Chevron should not be required to continue the employment of a disabled employee in a job that put him at significant risk. The Supreme Court, in a unanimous decision by Justice Souter, concluded:
Chevron’s reasons for calling the regulation reasonable are unsurprising: moral concerns aside, it wishes to avoid time lost to sickness, excessive turnover from medical retirement or death, litigation under state tort law, and the risk of violating the national Occupational Safety and Health Act…. [F]ocusing on the concern with OSHA will be enough to show that the regulation is entitled to survive. Echazabal points out that there is no known instance of OSHA enforcement, or even threatened enforcement, against an employer who relied on the ADA to hire a worker willing to accept a risk to himself from his disability on the job. In Echazabal’s mind, this shows that invoking OSHA policy and possible OSHA liability is just a red herring to excuse covert discrimination. But there is another side to this. The text of OSHA itself says its point is ‘to assure so far as possible every working man and woman in the Nation safe and healthful working conditions,” §651(b), and congress specifically obligated an employer to “furnish to each of his employees employment and a