DOH! Nuclear Safety Regs Trump ADA Accommodation Request (Thankfully)In a battle between a mentally ill employee seeking accommodation for his job at a nuclear plant and federal nuclear safety codes—-which wins out? The Third Circuit Court of Appeals ended up going with safety codes.

Looking Out for an Erratic Employee

Mr. Daryle McNelis was an armed security guard at Pennsylvania Power and Light’s (PPL) nuclear power plant in Susquehanna. As a nuclear power plant operator, PPL was required by the Nuclear Regulatory Commission (NRC) to have a “fitness for duty” program to show that no employees were mentally or physically impaired in any way that would affect their ability to safely and competently perform their duties. In addition, the NRC required PPL to monitor employees who had access to sensitive areas of the plant to make sure that those employees did not constitute an “unreasonable risk to public health and safety or the common defense and security.” This required employees in those positions to undergo a psychological assessment and be under a “behavioral observation program” to identify aberrant behavior. If an employee’s trustworthiness or reliability was determined to be questionable, the NRC required that PPL terminate the employee’s access.

McNelis had unrestricted access and was responsible for protecting vital areas from radiological sabotage, so he was subject to monitoring. He also was armed. In 2012, McNelis started exhibiting bizarre paranoid behavior (he thought his children’s toys were plotting against him) and was abusing alcohol and “bath salts” (a synthetic recreational drug). A coworker reported this behavior to a supervisor. McNelis was examined by a psychologist who performed fitness-for-duty examinations at nuclear facilities nationwide. The psychologist determined that McNelis was considered not fit for duty. Based on that report, PPL revoked McNelis’s access authorization and terminated his employment. McNelis filed an ADA claim alleging that the psychologist wrongfully diagnosed him and that he could have performed the essential functions of his job, with or without an accommodation. The lower court granted summary judgment in favor of the power company.

Safety First

On appeal, the Third Circuit stated that McNelis could not prove that he was fit for duty under the NRC’s regulations and therefore his claim failed. The court cited numerous opinions holding that nuclear power plant employees who lost security clearance or were deemed not fit for duty are not qualified employees under the ADA. By setting such a standard, the NRC made the legally defined qualification an essential function of certain jobs at nuclear power plants. The court went on to analogize the situation to federal DOT regulations for driving a commercial motor vehicle. If an employee could not pass the DOT medical certification, they were not considered qualified under the ADA. Employers covered by the DOT regulations, such as the power plant being covered by the NRC regs, were not insisting on a job qualification of their own devising, but instead were complying with a regulation that had the force of law.

McNelis attempted to argue that the lower court’s holding diminished ADA protections for workers in sensitive positions of the nuclear industry. The Third Circuit stated that due to the potential danger to the public, it was perfectly rational for the NRC to explicitly require nuclear power plants to screen for traits and behaviors that in other contexts might violate the ADA. The Third Circuit upheld the dismissal of McNelis’s claim.

What Did We Learn?

At first glance, this opinion may only seem to apply to high-public-risk employers such as nuclear plants. However, the Third Circuit pointed to a great deal of case law showing that many other occupations are affected by federal safety regulations—-most commonly, DOT regulations. Employers that are explicitly required to have their employees meet federal safety and medical standards should be aware that those can be considered essential functions of that job. This decision also illustrates that safety, and how an ADA accommodation may affect that safety, is always a consideration during the accommodation interactive process.