Employees diagnosed with medical conditions such as diabetes, epilepsy or heart conditions may experience repeated episodes of lost consciousness. How should employers respond to situations where an employee is repeatedly passing out at work without running into issues under disability discrimination laws? In Wurzel v. Whirlpool Corp., the Sixth Circuit Court of Appeals recently affirmed an employer's decision to remove such an employee from a potentially dangerous workplace.

The plaintiff suffered from repeated debilitating coronary spasms at work that required him to seek medical attention. After medication and treatment failed to stop these occurrences, Whirlpool's plant physician removed him from his forklift driving job, despite his personal physician's clearance to return to work without restrictions. He was moved into a non-driving manufacturing position, but continued to experience spasms. Whirlpool eventually removed the plaintiff from work under the belief that his loss of consciousness while working with heavy equipment presented a direct threat to himself. He sued, alleging discrimination and failure to provide reasonable accommodation under the Americans with Disabilities Act.

The Sixth Circuit affirmed summary judgment for Whirlpool under the direct threat defense to ADA claims. The court rejected the plaintiff's contention that his cardiologist's medical opinion superseded that of the plant physician, pointing out evidence that the plaintiff had misled his physician as to the frequency of the spasms, and finding that the personal physician was not familiar with the particular dangers faced in this workplace. The Sixth Circuit concluded that Whirlpool had acted on reasonable medical information indicating that the plaintiff presented a real and imminent threat of injury if he continued working.

This case presents a good outline for employers faced with similar situations. In many cases, the employee's personal physician does not understand the nature of the job or specific hazards faced by an employee who unexpectedly loses consciousness, or is pressured by the employee to allow him to return to work. The court allowed the employer to rely on its own medical opinion, even though it did not come from a specialist in the plaintiff's condition. In addition, Whirlpool made a considerable effort to collect and review medical information, consult with the doctors involved, and attempted several accommodations before arriving at its conclusion that the plaintiff presented a direct threat of injury to himself.

This defense will not work in all cases. For example, an employee in an office environment who loses consciousness probably would not present a direct threat of injury based only on the possibility of him hitting his head on the way down. Employers need to be able to point to specific and likely hazards from that workplace, such as machinery, vehicles or other processes that could result in significant injury if the employee passes out.