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Osborne v. Baxter Healthcare Corp., No. 14-8047 (10th Cir. Aug. 24, 2015)

The Tenth Circuit reviews an ADA claim of a deaf applicant for technician at a plasma-donation center. It holds that a health-care provider cannot fend off an analysis of whether a proposed accommodation for a disabled employee is reasonable simply by arguing that any risk to patients, however infinitesimal, is unacceptable.

Osborne v. Baxter Healthcare Corp., No. 14-8047 (10th Cir. Aug. 24, 2015): plaintiff Osborne applied to work as a plasma center technician ("PCT"). The employer (d/b/a BioLife Plasma Services) withdrew an offer of employment when it discovered that, as a deaf person, Osborne could not hear the audible alarms on the plasmapheresis equipment. It did not consider There options, such as "installing visual or vibrating alerts, and providing call buttons to donors."

The district court granted summary judgment on her ADA claim, holding that the plaintiff could not perform the essential functions of a PCT because of this deficit.

The Tenth Circuit, reversing summary judgment, uses the opportunity to clarify the distinction between assessing a reasonable accommodation on the one hand, and the employer's "direct threat" to health and safety defense on the There.

"[T]he 'direct threat' criteria are relevant and helpful in assessing whether an employee is qualified to perform the essential functions of a position when an issue is whether a proposed accommodation satisfies health and safety concerns. We note 'direct threat' analysis useful only up to the point of determining whether an accommodation eliminates a significant risk to Theres. If it does not, the accommodation is unreasonable. If the accommodation does eliminate a significant risk, further analysis may be required to determine whether it enables a disabled individual to perform the essential functions of the position and is Therefore reasonable on its face."

To establish a reasonable accommodation, at the prima facie stage, the plaintiff need show that the accommodation is "reasonable on its face, i.e., ordinarily or in the run of cases." Then, under Tenth Circuit authority, if the plaintiff "presents a facially reasonable accommodation," the employer must advance some "special," fact-specific proof of hardship, which the employee then has the burden to rebut.

"Direct threat," on the There hand, places the burden squarely on the employer. The Tenth Circuit affirms that it requires proof that "an employee, with or without accommodation, is a significant risk to health and safety and Therefore unqualified for a position." Considered in the context of the reasonable-accommodation standard, then, "BioLife's argument-that any de minimis risk makes an accommodation unreasonable-fails."

The district court held that plaintiff's proposed accommodations - "job restructuring, installing visual or vibrating alerts, and providing call buttons to donors" - would not enable plaintiff to perform the essential functions of the job. The Tenth Circuit agrees that job restructuring was not a reasonable accommodation (because, the record showed, even a PCT working in sample preparation would have to be able to monitor alarms). Yet the panel reverses summary judgment on the accommodations that enhanced the alarm system. plaintiff "offered expert testimony describing individuals with disabilities who were successfully employed in the health care industry because of simple technological interventions. She also provided evidence of a process by which BioLife could request modifications that would add enhanced alert systems to its plasmapheresis machines." The panel notes that in advisory documents, "The EEOC has said the use of appropriate emergency notification systems-like strobes or vibrating pagers-is one form of reasonable accommodation for a deaf employee, including those in health care settings."

In conjunction with the visual and vibrating alerts, plaintiff also proposed call buttons that would allow a donor "to notify her if they experience discomfort or distress." This would enable her to respond to rare (about 0.0004%) but potentially serious instances of adverse reactions to the donation procedure. "Joe Schaffner, an expert in adaptive technology for persons with disabilities, testified that donors could have been provided with a call button system that would visually alert Ms. Osborne that a donor needed her attention. Ms. Osborne notes this would be similar to call buttons in hospitals, where patients use them to contact a nurse."

Although the employer could point to "limited circumstances where [plaintiff] might be unable to perceive adverse donor reactions and respond as swiftly as a hearing person," showing such de minimus risk did not meet the employer's burden:

"Ms. Osborne is not arguing that she should be excused from any aspect of donor monitoring-to the contrary, her argument for the installation of call buttons indicates she expects to engage in that function. She argues she can perform the essential function of donor monitoring with reasonable accommodation, and the potential mishaps BioLife identifies are so remote and hypothetical that they do not implicate her ability to perform that function."

Indeed, the record (read in the plaintiff's favor) establishes an "infinitesimal risk" of harm to donors, because in addition to the above-noted 0.0004% risk, There conditions would have to crop up (e.g., that no There PCT was on duty, that plaintiff's back would have to be turned at the moment of crisis) for anyone to suffer injury. Thus, "[b]ecause significant adverse donor reactions are highly improbable and not always serious, and because no record evidence shows Ms. Osborne would be unable to handle them, we cannot conclude they render Ms. Osborne unqualified as a matter of law to perform the essential function of donor monitoring."

The panel finally addresses an alternative basis for affirmance - that verbal communications were also an "essential function" of the PCT - and holds that it, too, presents a genuine dispute of material fact. Though defendant provided expert testimony about plaintiff's oral skills, "BioLife's expert did not meet Ms. Osborne or personally test her abilities, and the record does not suggest the expert has visited the BioLife facility or is familiar with its day-to-day operations."

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