Employers who use across the board qualification standards, such as hearing and vision tests, to reduce safety risks that potentially screen out disabled employees may need to reevaluate these standards.  In Bates v. UPS, the Ninth Circuit tightened the already stringent standards for employers who use such across the board qualification standards in the name of safety.  The Americans with Disabilities Act ("ADA") has long been construed to allow employers to use qualification standards which screen out certain disabled individuals as long as the standards relate to an essential job function and are justified by "business necessity."  The Ninth Circuit recently determined that showing justification by "business necessity" requires an individual assessment of each applicant or employee in order to determine whether reasonable accommodation might permit the applicant or employee to safely perform the job.

In Bates v. UPS, the Court held that the employer, UPS, violated the ADA by requiring that all of its drivers pass the Department of Transportation’s ("DOT") hearing test required for drivers of vehicles over 10,000 pounds.  UPS sought to use the DOT hearing test for drivers of vehicles under 10,000 to screen for safety risks.  The court found that because not all UPS vehicles are rated at over 10,000 pounds, UPS could not rely upon the DOT’s hearing standard as a qualification for all its drivers.  In so ruling, the Court held that UPS failed to satisfy its burden under the business necessity defense despite evidence showing that hearing impaired drivers pose an additional safety risk in any vehicle.

The Court determined that an employer cannot automatically rely on a government safety standard beyond its intended scope in order to satisfy the business necessity defense.  Rather the employer must show either, (1) "substantially all [excluded individuals with disabilities, i.e. hearing impaired drivers] present a higher risk of accidents than other non-excluded individuals," or (2) "there are no practical criteria for determining which [excluded individuals with disabilities] present a higher risk and which do not."  The court opined that even if UPS was able to present evidence that hearing impaired drivers present a greater safety risk than other drivers, UPS would also have to show that that risk was higher than the accident risk already accepted by the company.  For example, because UPS had in place policies that allow for drivers who have had accidents to continue as UPS drivers, UPS would have to show that hearing impaired drivers have an even higher risk than other drivers who have displayed a propensity to get in accidents.

What this means for employers: Now is a good time to reevaluate any across the board safety based qualification standards that screen for hearing, vision and other physical abilities.  Of particular concern should be safety oriented qualifications standards which may disqualify from employment otherwise qualified individuals with disabilities.