Your verdict must be for [defendant] if [defendant] has proved both of the following by a preponderance of the evidence:
Second: This direct threat could not be eliminated, or reduced to an acceptable level, by providing a reasonable accommodation, as I have previously defined that term for you.
In determining whether [plaintiff] would have created a significant risk of substantial harm, you should consider the following factors:
2) The nature of the potential harm and how severe the harm would be if it occurred;
3) The likelihood the harm would have occurred; and
4) Whether the potential harm was imminent, that is, whether it was about to happen soon.
COMMENT
This instruction is derived from 42 U.S.C. § 12111; id. § 12113; 29 C.F.R. § 1630.15 (2019); U.S. Equal Emp. Opportunity Comm’n, Interpretive Guidance on Title I of the Americans with Disabilities Act, 29 C.F.R. pt. 1630, App. 1630.2; and caselaw as discussed below.The ADA provides an affirmative defense where accommodation of, hiring or retaining an employee would constitute a “direct threat.” 42 U.S.C. § 12113(b).46 “Direct threat” is defined as “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” 42 U.S.C. § 12111(3).47 The regulations, which extend the idea of threat to encompass threats to the individual himself or herself as well as to others, see 29 C.F.R. § 1630.15(b)(2) (2019),48 provide: 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 an individual poses a “direct threat” shall be based on an individualized assessment of the individual's present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:
(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.
The EEOC’s interpretive guidance provides further detail on the level of risk that constitutes a direct threat: “[T]he employer must determine whether a reasonable accommodation would either eliminate the risk or reduce it to an acceptable level…. An employer... is not permitted to deny an employment opportunity to an individual with a disability merely because of a slightly increased risk. The risk can only be considered when it poses a significant risk, i.e., high probability, of substantial harm; a speculative or remote risk is insufficient.” 29 C.F.R. § Pt. 1630, App. 1630.2(r) (2019).
