The Americans with Disabilities Act (ADA); 42 USC § 12112(a); How the ADA accounts for an employer’s concern that disabled employees might injure themselves or others in a particular job; Whether plaintiff was a “qualified individual” under the ADA; § 12111(8); Estate of Mauro ex rel Mauro v Borgess Med Ctr; Whether plaintiff posed a “direct threat” of harm; 29 CFR § 1630.2(r)(1)–(4); Reasonable accommodations; Interactive process; § 1630.2(o)(3)

The court held that plaintiff-Smith’s employer, defendant Newport Utilities, did not violate the ADA where (1) “Smith’s seizures posed a safety threat that barred him from continuing as a bucket foreman” and (2) he failed to identify “any other open positions that he was qualified to perform.” He worked as a powerline repairman for Newport for many years. After he had two on-the-job seizure incidents within months, he was diagnosed with “absence seizures.” Newport gave him a choice between being fired or retiring. He opted to retire and then sued under the ADA. The district court granted Newport summary judgment. The court found that this appeal turned on “how the ADA accounts for a concern that disabled employees might injure themselves or others in a particular job.” It noted that there was a split in the circuits as to how the courts should evaluate the “risk that an employee might cause harm” under the ADA. But the parties did not engage with the “burden-of-proof question, so” the court opted “not to resolve it.” It instead assumed that Newport “bore the burden to show that Smith qualified as a direct threat of harm if he remained in his role as a bucket foreman” and also that Newport “could obtain summary judgment only if it ‘affirmatively introduce[d]’ such evidence that ‘no rational jury’ could disagree with its conclusion that” this was so. As to the meaning of “qualified individual,” the court has held that “the need for employees not to cause harm [is] an ‘essential function’ of all jobs.” It concluded that Newport met its burden to show that “Smith qualified as a direct threat of harm to himself and others as a bucket foreman. Consider the four regulatory factors. If Smith had a seizure as a bucket foreman, it could cause the most ‘sever[e]’ of ‘harm[s]’: death.” The court noted that he “worked in an ‘inherently dangerous’ role fixing live powerlines often in extreme weather.” In addition, “every doctor who evaluated Smith supported the conclusion that he created a risk of harm in the bucket-foreman role.” As to accommodations, a “modified schedule cannot qualify as a reasonable accommodation if the changes would eliminate an essential function of the job” and that was the case here. Smith also argued that he could have been transferred to an alternative position, but there was no evidence he ever asked for a different job. And Newport did investigate if he “qualified for any unfilled jobs. When the company forced him to retire,” four open positions were identified – he did not qualify for any of them. Finally, as he “did not identify any reasonable accommodations that Newport” could have made, his claim that it violated its duty to interact also failed. Affirmed.