May an employer refuse to hire a person with a disability simply because it assumes, correctly or incorrectly, that s/he poses some increased risk of occupational injury?

May an employer refuse to hire a person with a disability simply because it assumes, correctly or incorrectly, that s/he poses some increased risk of occupational injury and increased workers' compensation costs? No, unless the employer can show that employment of the person in the position poses a ''direct threat.'' In enacting the ADA, Congress sought to address stereotypes regarding disability, including assumptions about workers' compensation costs. Where an employer refuses to hire a person because it assumes, correctly or incorrectly, that, because of a disability, s/he poses merely some increased risk of occupational injury (and, therefore, increased workers' compensation costs), the employer discriminates against that person on the basis of disability. The employer can refuse to hire the person only if it can show that his/her employment in the position poses a ''direct threat.'' This means that an employer may not ''err on the side of safety'' simply because of a potential health or safety risk. Rather, the employer must demonstrate that the risk rises to the level of a direct threat. ''Direct threat'' means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation. The determination that a direct threat exists must be the result of a fact-based, individualized inquiry that takes into account the specific circumstances of the individual with a disability. In determining whether employment of a person in a particular position poses a direct threat, the factors to be considered are: - the duration of the risk; - the nature and severity of the potential harm; - the likelihood that the potential harm will occur; and - the imminence of the potential harm. Some state health or safety laws may permit or require an employer to exclude a person with a disability from employment in cases where the ADA would not permit exclusion because employment of the person in the position does not pose a direct threat. Because the ADA supersedes such state laws, an employer may not defend its exclusion of a person with a disability on the basis of such a law.