Chevron v Echazabal: Public Health Issues Raised by the “Threat-to-Self” Defense to Adverse Employment Actions

Abstract

In June of 2002, the US Supreme Court upheld a regulation that allows employers, under the Americans with Disabilities Act, to make disability-related employment decisions based on risks to an employee’s own personal health or safety. Previous judicial decisions had allowed employers to make employment decisions based on the threat that a worker’s medical condition posed to others but had not addressed the issue of risk posed to an employee’s health by his or her own disability.

The authors comment on the potential effects of the court’s decision for occupational health practitioners charged with assessing the degree of risk and harm of a particular workplace environment and for public health efforts aimed at curbing workplace injury and sickness.

On June 10, 2002, the United States Supreme Court upheld, in Chevron USA Inc v Echazabal,1 a regulation promulgated under the Americans with Disabilities Act (ADA)2 by the Equal Employment Opportunity Commission (EEOC) that permits employers to refuse to hire job applicants, or to discharge employees, whose disabilities place their personal health or safety at significant risk for employment-related illnesses or injuries. The lawsuit was brought by Mario Echazabal, who had worked 24 years for Irwin Industries, an independent contractor of Chevron, before being terminated in 1996 after it had been determined that he was susceptible to liver damage.

During his tenure with Irwin Industries, Echazabal decided that he wanted to work directly for Chevron, and he applied there in 1992 and in 1995. On each occasion, Chevron extended Echazabal a job offer conditioned upon his passing a preemployment physical examination. Through these examinations, Chevron’s physicians determined that Echazabal had a heightened risk of liver damage as a result of exposure to hepatotoxic solvents and chemicals present at the Chevron oil refinery where Echazabal delivered services on behalf of Irwin Industries. On the basis of these medical opinions, Chevron not only revoked the conditional job offers it had extended to Echazabal but notified Irwin Industries of Echazabal’s liver sensitivity, which resulted in Echazabal’s 1996 discharge.

In his lawsuit against Chevron, Echazabal alleged that the company had violated the ADA’s prohibition on discrimination against people with disabilities3 when it refused to hire him because of his liver condition. In its defense, Chevron invoked the EEOC’s “threat-to-self” regulation, which, as noted, allows employers to exclude individuals whose disabilities pose a direct threat to their personal health or safety at work.4 The trial court ruled in favor of Chevron, but that ruling was later reversed on appeal by the Ninth Circuit Court of Appeals, which found the EEOC’s “threat-to-self” defense to be impermissible under the ADA.5 The Supreme Court, however, reversed the Ninth Circuit and upheld the EEOC’s allowance of a threat-to-self defense.1

The Supreme Court’s decision carries with it potential ramifications for providers of occupational health services and for public health efforts aimed at curbing occupational disease and injury. Because occupational health practitioners are the professionals through whom employers both accumulate employee health information and acquire medical documentation in support of threat-to-self defenses, these practitioners may experience pressure by employers intent on expanding the breadth and scope of their post-Chevron medical testing. The possibility of expanded medical testing and examinations reopens debates regarding the appropriate level of intrusion that should be tolerated in furtherance of occupational health objectives and raises the specter of potential discrimination by employers bent on reducing their insurance costs and workers’ compensation premiums. It also expands the possibility that employers, in situations in which the risk of harm to employees is ambiguous, will emphasize removing the susceptible worker from the workplace rather than modifying the work environment to accommodate the worker.

In an odd way, however, the solicitude that Chevron sought to exercise on employees’ behalf is consistent with labor law’s paternalistic oversight of employees’ health and safety, even if it is inconsistent with positions and approaches historically championed by employers. With the implementation of the Occupational Safety and Health Act of 1970,6 employers were charged with responsibility for oversight of workers’ safety to a broader extent than ever before in American law.7 Employers opposed the legislation; employee representatives championed it for its progressive paternalism. And now, with Chevron, we come full circle, to a world in which employers champion responsibility for worker safety while civil libertarians and social progressives adopt an approach of staunch individualism.

IMPLICATIONS OF CHEVRON

Implications for Occupational Health Practitioners

Chevron confirmed that the law permits employers to exclude individuals with disabilities that pose a direct threat to their personal health or safety at work. Direct threat is defined as a “significant risk of substantial harm” that cannot be eliminated by reasonable accommodation (e.g., by using gloves or wearing masks).8,9 According to EEOC regulations, the threat-to-self defense must be based on “an individualized assessment of the individual’s present ability to safely perform the essential functions of the job,” which must in turn be based on “a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.”9

Thus, while the level of scientific evidence that must be documented to meet the burden of proof for a valid defense has been set by law (i.e., significant risk of substantial harm), the actual clinical assessment of risk and degree of harm is a medical matter properly determined by occupational health professionals. The medical and public health communities, therefore, have a significant role to play in determining whether, in a given employment setting, there exists a significant risk of substantial harm to the health or safety of an individual with a particular illness, injury, or susceptibility to a workplace hazard.

This vital role of the medical community in assessing risk and degree of harm has been recognized by the EEOC and courts alike.10 The EEOC, for example, has specified that objective medical evidence supporting an employer’s threat-to-self defense may include “documentation from medical doctors, psychologists, rehabilitation counselors, physical or occupational therapists, or others who have expertise in the disability involved.”9,11 Documentation provided by one or more health care professionals regarding the existence of a significant risk of substantial harm to a disabled individual in a particular workplace environment probably represents the strongest evidence that may be marshaled by employers in support of a threat-to-self defense.

Likewise, scientific evidence supporting the absence of a significant risk of substantial harm is the means by which disabled individuals may refute the validity of an employer’s threat-to-self defense. For example, in a case in which an employer had invoked a “risk-to-others” defense—a defense that protects employers who take negative employment action against individuals who pose a significant risk of substantial harm to the health or safety of others on the job—a federal court ruled for the plaintiff after citing reports published by the Centers for Disease Control and Prevention indicating that there was no evidence that HIV was transmitted by individuals employed in food service positions.12

Given the decisive role of documented medical evidence in proving the existence or absence of a significant risk of substantial harm, employers may seek to exercise considerable pressure in terms of the scope of clinical assessments conducted by occupational health providers, most notably in regard to internal assessments made by staff clinicians but also assessments made by external providers with whom employers contract for occupational health services. A case now pending before the New York Court of Appeals involves the New York Times, which fired its full-time associate medical director allegedly because she refused to divulge confidential employee medical records to the company and because she refused to “misinform employees regarding whether injuries or illnesses they were suffering were work-related so as to curtail the number of Worker’s Compensation claims filed against the Times.”13

The appellate division of the Supreme Court of New York concluded that the Times’ dismissal of its associate medical director in these circumstances was illegal, in that an exception to New York’s employment-at-will law prevents employers from dismissing physicians who refuse to practice medicine in derogation of the ethical standards of their profession.13 However, if the New York Court of Appeals reverses the appellate division and finds in favor of the Times, occupational health practitioners in New York (and in states whose courts or legislature adopt a similar opinion) may find themselves in situations in which they feel, quite directly, a tension between the ethical standards of their profession, on the one hand, and the expectations of their employers, on the other.

Public Health Implications

Under Chevron, employers may be enticed to expand the scope and range of occupational health examinations and testing conducted with current and prospective employees. While employers have a legitimate interest in collecting employee health information regarding predispositions to workplace hazards so that they may satisfy their legal and ethical obligations of providing a safe working environment, post-Chevron employers may be tempted to amass medical information in an excess of solicitude and caution. Employers’ motivation to do so may be partly humanitarian, but it also has an economic context and important financial implications. Because 5% of health care claimants reportedly consume 50% of health care resources, and 10% of claimants reportedly consume 70% of such resources,14 there is a significant financial incentive to identify and exclude employees with an enhanced risk of becoming heavy consumers of health care owing to occupational illnesses.

An increase in medical information collection in the workplace would ironically coincide with heightened federal attention to issues of health information privacy. Employees (and health care consumers generally) are becoming increasingly sensitized to the ways in which their medical information may be collected, used, or disclosed to third parties.15 For example, in a recent survey, 63% of respondents reported that they would not submit to genetic testing if they believed that health insurers or employers could gain access to the results.16 Moreover, employees who are skeptical regarding the ability or willingness of occupational health practitioners to maintain the confidentiality of their health information may be wary of submitting to workplace medical examinations and testing.

A secondary but predictable consequence of workplace testing and examinations (that extend beyond what is legitimately required to satisfy occupational health and safety obligations), coupled with a perceived lack of privacy protection for health information amassed through that process, is that workers may avoid employment settings in which such testing is conducted out of fear of employment discrimination and a general loss of medical privacy. Self-deferral of employees from workplace environments would represent a deterrent effect of enhanced medical screening and a notable public health consequence that clinical medicine and public health practice seek to avoid. In fact, in an effort to enhance safety but also preserve employee medical privacy, labor organizations have traditionally engaged consultants with expertise in engineering and ergonomics to identify and eliminate workplace hazards rather than screen out susceptible employees. To be effective advocates, post-Chevron unions will need to show in specific cases that such engineering and ergonomic controls are preferable to a policy of susceptibility screening, thereby preserving employee health privacy and preventing the deterrent effects of excessive screening while also allowing employers to reduce workplace injuries and their related costs.

Concern over loss of medical privacy raises the very real issue of how effectively the law in fact limits the amount or types of health information that employers may collect from employees. The reality is that federal and state medical privacy laws regulate the use and disclosure of health information rather than the initial collection of such information.17 Such collection would not, for example, be prevented by the most comprehensive source of health information privacy protection available in the United States today, namely the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and its associated privacy regulations (collectively referred to as the “privacy rule”). While HIPAA does not generally regulate employers directly, it does regulate occupational health practitioners and other health care providers who engage in certain electronic transactions covered by the privacy rule (i.e., certain electronic billing and referral transactions). Yet, disclosures of medical information from occupational health practitioners to employers are by and large not prohibited under HIPAA.

For example, HIPAA permits disclosures of health information that are necessary so that employers may comply with workers’ compensation laws18 and with federal and state occupational health and safety laws (so long as employees are notified in advance that such disclosures may occur).19 And although disclosures for other purposes (e.g., results of fitness-for-duty examinations) may not occur without employee authorization,20 employees will authorize such disclosures because neither HIPAA nor the ADA prohibits employers from taking negative employment action against employees who refuse to authorize the disclosure of results of medical examinations that are otherwise valid under the ADA. Furthermore, occupational health practitioners who do not engage in any of the covered electronic transactions will avoid HIPAA altogether.21 Disclosures from such non-HIPAA-covered practitioners (which probably will include many on-site employee health services) to employers may therefore occur without violation of HIPAA.

Because HIPAA does little to prevent excessive employee health information collection on the part of employers, the crux of employee privacy protection will remain within the ADA itself. In contrast to most other laws, the ADA provides at least some protection in regard to health information at the collection stage. Such protection is afforded to “pre-offer” job applicants and “on-the-job” employees but not to applicants during the “post-offer, preemployment” period. The strongest protection is granted during the “pre-offer” period, at which time employers are entirely prohibited from requiring medical examinations or from making medical inquiries.22,23 Medical testing and examinations of “on-the-job” employees must be “job related and consistent with business necessity” (referred to as “job-validated” testing).24,25 Job-validated testing includes, for example, that which is necessary to ascertain whether an employee can physically continue to perform the essential functions of the job, as well as that which is necessary to determine whether the employee can perform the job without posing a direct threat to him- or herself or others.

If the Supreme Court had rejected the threat-to-self defense in Chevron, employers would no longer have been entitled to conduct tests and examinations aimed at identifying illnesses or susceptibilities posing a direct threat to employees’ personal health or safety at work, which in turn would have narrowed the scope of employee health information legitimately amassed by employers. Moreover, the ADA’s greatest shortcoming as a vehicle for safeguarding employee privacy and for combating discrimination occurs at the “post-offer, preemployment” stage, during which time the ADA sets no limits on the amount of medical examinations and tests that may be required by employers (so long as all applicants for the same position are obliged to take the same tests and examinations).

In light of Chevron, the medical community has an important role to play in defining for courts, regulators, and employers the particular medical tests and examinations that are truly job validated. Tests and examinations aimed at diagnosing illnesses or susceptibilities that would not pose a direct threat to an employee’s health or safety (or the health or safety of others) in a particular work environment are not job validated and should therefore not be conducted. Because the direct threat standard assesses biological risk, it is based primarily in science and medicine. The medical community is, consequently, the rightful arbiter of the amount and types of health information that employers should legitimately be able to collect from employees under the ADA.

For example, if reports of adverse employee selection practices based on genetic test results indicating predispositions to future illnesses begin to accumulate,26–28 the medical community could make clear, through the reports of its local and national associations and through amicus curiae briefs submitted to courts on behalf of employees, that such testing is not job validated and hence is being conducted in violation of the ADA, as well as in violation of sound public health policy. Moreover, on a fundamental level, the Chevron holding poses for occupational health practitioners the question of whether to emphasize worker susceptibility and predisposition to illness over technology and engineering-based reductions of workplace risk.

Genetic and other tests of susceptibility to future illnesses are illegal because, while the ADA condones testing for direct threats that represent a current risk to employees’ health or safety, it prohibits testing for risks that are speculative or remote.11 Illnesses whose expressions reside somewhere in the undefined future do not usually denote a current health risk, although the nearer and more tangible the risk, the greater the likelihood that workplace medical testing and exclusion could be upheld under Chevron. Yet, most genetic predispositions would qualify as speculative in that they represent a propensity to develop a future illness (which may or may not ultimately find expression) rather than a certainty of future illness.

There remains a risk that employee health information, once amassed, may later be used by employers (or even unions themselves) in making decisions about promotions to advanced positions, in making dismissal decisions during times of corporate downsizing, or in making decisions about reducing workers’ compensation or insurance premiums. Once employee health information has been collected and is on record, it will be difficult for employees to prove that a particular negative employment action had an illicit, rather than lawful, basis.17 For these reasons, Chevron poses new challenges for the responsible practice of occupational medicine and for responsible decision making on the part of unions and employers.

CONCLUSIONS

By influencing the development of the “significant risk” standard under the threat-to-self defense and, more generally, what it means to be “job related and consistent with business necessity,” occupational health practitioners will be able to limit the potential for unnecessary collection, improper use, and inadvertent disclosure of health information, each of which depends, in some measure, on how broadly the significant risk and job-validation standards are interpreted under the ADA. Narrowing the scope of permissible testing will be important in terms of instilling employee confidence in the protections afforded under the ADA and reconciling, to the greatest extent possible, the conflict between employer paternalism and employee autonomy.

Post-Chevron, the occupational health challenge is acute: employers must be allowed to prevent imminent, predictable injuries to their employees, while employees must not be subjected to inappropriate screening and unnecessary disclosure of their private medical information. One strongly suspects that Chevron will not be the last word on these issues and that a long, new chapter in American law has begun to be written.