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Unformatted text preview: threat" is defined as a "significant risk to the health or safety of others that cannot 218 be eliminated by reasonable accommodation." 42 U.S.C.A. § 12111(3); 29 C.F.R.
Even if an employee is a direct threat, as long as a reasonable
accommodation can be made to eliminate that threat, the employee may
remain employed. Id. The Code of Federal Regulations further provides:
The determination that an individual poses a "direct threat" shall be based
on an individual 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
(1) The duration of the risk;
(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.
29 C.F.R. 1630.2(r) (1996).
The information sought via the medical examination was whether Sharp could safely
perform the function of his job involving cuts and scrapes without exposing others to
HIV infection. The EEOC contends that this information can be obtained without a
medical examination, either by consulting health care officials or by simply asking Sharp
himself, and that the determination of the necessity of a medical examination is to be
made by consulting a health care official before demanding that the employee undergo a
medical examination. At trial, the EEOC presented the testimony of its expert medical
witness, Dr. Rodger MacArthur, who stated that a medical examination would be an
opportunity to evaluate Sharp's intellect and personal hygiene; an opportunity to assess
Sharp's understanding of how the condition can be transmitted and to determine whether
Sharp is acquainted with universal precautions for preventing transmi...
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This note was uploaded on 09/30/2012 for the course ENC 102 taught by Professor Deria during the Spring '08 term at FIU.
- Spring '08