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Hire someone you know may get hurt on the job?

We recently came across a court ruling that may require you to give a job to a person who will likely be injured while performing that job. You say, “No way!” You've read about some crazy rulings, but this just can't be. Afraid so.

The ruling from this case (Echazabal v. Chevron USA, U.S. Circuit Court 9) is that an employer may not refuse to put an employee in a job even if the employer thinks it may harm him. Such refusal may be seen as discrimination under the Americans with Disabilities Act (ADA).

However, if you hire that person for a job and he or she is injured, guess what happens to your workers' compensation costs. Or what if the employee hires a sharp lawyer who files suit against your rental store for putting him at risk in the first place?

A federal court in California recently made this ruling in a case involving a worker we'll call Charlie. Charlie applied for a job in a refinery. He made the cut and was offered the job if he could pass a physical exam. However, when the exam revealed that he had a liver problem, the company withdrew the job offer. Charlie sued under the ADA and the company decided to fight back, saying it was protecting Charlie by refusing to subject him to known health hazards. The court found against the company, ruling that it could deny the job to Charlie only if he would threaten the safety of other workers. Since this involved Charlie's own safety or health, the company must allow Charlie to make the decision.

How does this apply to you? Say you're a rental store specializing in high-reach equipment. You are hiring workers whose job will include the handling of personnel lifts. One of your employees recommends his friend Charlie, a young, strong, eager fellow. Charlie comes and applies for your job and seems to fit your needs. He does tell you, however, that he sometimes gets dizzy from heights. You are concerned that you won't be able to keep him off the lift platforms and you're afraid he might fall and get hurt. So you don't offer him the job. Charlie finds out why you didn't hire him and sues you for discrimination. According to this court ruling, you may be forced to hire Charlie even though you suspect he could be injured on the job.

So what can you do to protect yourself?

Ask Charlie to discuss the position with his doctor and get the doctor's advice. Put this request in writing.

• Explain, in writing, the hazards Charlie could face. If he insists on accepting your position, get Charlie to sign a statement that he completely understands and accepts the risks you have fully explained to him — have your attorney provide the wording.
• Do everything possible to keep Charlie's duties such that he is not subjected to heights.
• Have his supervisor keep a close watch on Charlie and immediately report any potential trouble to you.
• Check with Charlie often, asking him if he is having any problems and documenting his responses.

We know your business risks are difficult enough without courts compounding your problems. So use caution — this is a potentially serious employment situation.