Pepper spray allergy
Public Sector Texas
17 Posts
My agency includes law enforcement personnel, who have for several years been given the option of carrying "pepper spray" (concentrated spray derived largely from cayenne pepper), and have recently been told that now this will be mandatory. All who carry the spray must first undergo a training that involves being sprayed on the forehead.
One employee has presented a doctor's note that says the employee is allergic to pepper spray and there "is danger of an anaphylactic response if exposed to it." The previous exposure to peppers has apparently been from eating them, but severity has increased with later exposure (breathing difficulty). Employee also went to our physician, who agreed this person cannot be exposed to pepper spray. Based on this we want to say that the employee is a direct threat, because even if he does not carry the spray, he could potentially be exposed at any time when assisting in an arrest, either from use by our agency or another law enforcement agency.
The employee's response: I carry two "epi pens" (epinephrine), nothing bad has happened to me yet at work, and this is a risk I am willing to take.
I don't think we as the employer are willing to take this risk, if the result could be harm to the employee, or risk to a partner (if the allergic employee either holds back when there is pepper spray or gets sprayed and goes into shock.
Questions:
- By considering this employee a "direct threat," are we "regarding as disabled"?
- Should we allow an employee to say "this could kill me, but I will take that risk?" Sign a waiver? (I say no way).
- Do we have to start a dialogue re: assigning employee to a job other than law enforcement, even if there is not a request for that?
One employee has presented a doctor's note that says the employee is allergic to pepper spray and there "is danger of an anaphylactic response if exposed to it." The previous exposure to peppers has apparently been from eating them, but severity has increased with later exposure (breathing difficulty). Employee also went to our physician, who agreed this person cannot be exposed to pepper spray. Based on this we want to say that the employee is a direct threat, because even if he does not carry the spray, he could potentially be exposed at any time when assisting in an arrest, either from use by our agency or another law enforcement agency.
The employee's response: I carry two "epi pens" (epinephrine), nothing bad has happened to me yet at work, and this is a risk I am willing to take.
I don't think we as the employer are willing to take this risk, if the result could be harm to the employee, or risk to a partner (if the allergic employee either holds back when there is pepper spray or gets sprayed and goes into shock.
Questions:
- By considering this employee a "direct threat," are we "regarding as disabled"?
- Should we allow an employee to say "this could kill me, but I will take that risk?" Sign a waiver? (I say no way).
- Do we have to start a dialogue re: assigning employee to a job other than law enforcement, even if there is not a request for that?
Comments
We had a grounds worker with extreme allergies produce a medical statement after a work incident (exposure to poison ivy), and the statement (for the first time) document medical concern for anaphylactic shock with further exposures. Granted there was not an risk exposure potential for coworkers like your situation, but we definitely jumped on the medical statement and moved the grounds worker to different work to minimize his exposure to poison ivy and other toxic plants at work. We did not tie the move directly to workers' comp and hopefully willl avoid w/c retaliation, but only time will tell. We haven't been challenged. We did clearly explain to the worker that the change resulted out of our concern for his welfare and safety at work, and the medical statement is the basis for the decision.
In another similar incident, we had a worker whose job required riding a lawnmover begin to show some serious bleeding problems (from a pre-existing health condition). We did basically the same for him in that he was removed from his job, asked to visit his personal physician, and return a medical clearance that he could resume his normal job activities. In that case, he voluntarily reported the symptoms to his supervisor and requested a job change due to the symptoms. Our message to him was that our decision would be made once a medical statement was received and, depending on whether his physician's medical opinion, he may or may not be able to return to work for us. Again, it seems that we may have taken appropriate action overall. We preserved the worker's morale, helped ourselves with a paper trail, and sent a valuable two-part message to the worker--we are concerned about his health/welfare, and our company will not make arbitrary job changes at an employee's request.
As for your questions, 'regarding' is part of the ADA definition, but I don't think you have crossed the line until you accomodate. Make that decision carefully. Next, the risks associated with officer work are tremendous. As an employer, I don't think you can take the chance of jeopardizing a coworker's life by allowing the allergic worker to waive the risk. A coworker's widow/widower will never understand that message if the worst case scenario occurs. Finally, I think you have a responsibility to act on the knowledge you have. It is allowable to make changes in job criteria from time to time, and your business has done that. If there is no way to grandfather in an exception, it may be time for a change. After all, things change. How you manage the change will be important.
My point is that I think you have to demonstrate some good efforts toward reasonably accommodating him. After exhausting this option, you would be safer and, at that point, well documented in disqualifying him from that postion.
I just thought of something else: Would the ocassion ever arise where he would be involved in an arrest with other officers who have discharged pepper spary?
Even if he were, the U.S. Supreme Court ruled in 2002 that employers can refuse to put a disabled person in a job that could harm him. You can find articles about the case by logging in to the Subscribers Area of this website and searching for 2002 newsletter articles containing the word Echazabal.
Good luck.
James Sokolowski
HRhero.com
Even if he's not legally disabled, you can consider whether you want to allow him to use an alternative substance or piece of equipment for defense purposes. But if he gets hit with someone else's spray, I doubt a waiver would hold up.
First how many officers do you have, how many arrests did they make last year?
How many times was pepper spray used?
As part of your policy, do the officers warn the offending suspects they are about to be sprayed?
Do you have tazers? I ask as this is another non-lethal way of subduing suspects...
Break it down.......if half the force carries spray now, used only x times, you can extrapolate number of uses, divide by 3 shifts, you may be surprised how comfortable you are with the # of times in a year your department does actually use it.
Just how I would look at it, would hate to lose a good officer becaue he is allergic to pepper spray.
Balloonman
What you say makes sense, but I keep coming back to the worst case scenario. What if this person does accidentally get sprayed and, unable to function properly, an innocent bystander ends up dead?
Police officers are wonderful people. They put their lives on the line every day to serve and protect. However, if someone ends up dead when the Dept. KNEW there was a risk...well, you can expect lawsuits, bad press, and lots of lost jobs for years to come.
The risk to the public is too great.
Having said that, I should perhaps point out that I don't work in the public sector and never have. I am just putting my 2 cents in.
Nae
You will see accounts that someone has set off pepper spray at schools or office buildings from time to time. It is an allergy, no different than my seafood or my daughter peanut allergy. He can for the most part control his exposure, and has the required tools to address a reaction. That and informing his co-workers really seems adequate enough to me.
The reality is making a traffic stops are more dangerous then his potential exposure to the pepper spray.
With severe allergic reactions you have some time, a trained officer would have time to draw his weapon shoot a suspect and be able to administer his eppi pin.
I have a hard time figuring how an innocent bystander would be at risk.....
Balloonman
In the scenario I was imagining the officer would be busy dealing with his/her reaction while the bad guy shot or stabbed someone else. While it may be unlikely, it is not impossible.
Can you really say that if the officer was sprayed in the face with pepper spray, and they were severely allergic, that they would still be able to react so that no one would be hurt? I have a hard time picturing this even if the officer is NOT allergic.
Again, I am only speculating. But when you are dealing with someone who is supposed to protect others, this seems to be an issue to me. If not, why bother to require other forms of fitness? People who take on this role need to be at their peak both mentally and physically.
If you are still certain, then I will bow to your superior knowledge....with reservations.
Nae
>
>With severe allergic reactions you have some
>time, a trained officer would have time to draw
>his weapon shoot a suspect and be able to
>administer his eppi pin.
I'm sorry, but this sounds like an episode of Andy Griffith. Is this your scenario? This oficer has to subdue a criminal (alleged) with pepper spray and has an allergic reaction. So before his throat swells up he shoots him so he will not get away and then gets the eppi pen out of the glove box.
I can't stop laughing.
I agree with others that you should look at alternatives (taser, mace) and if they will not work he can't be an officer.
We have made a determination that we can't allow this officer to continue in a peace officer job. The risks are not only from the officer carrying pepper spray, but from exposure when assisting another law enforcement officer, either from our own agency or another jurisdiction. So, until every law enforcement agency carries stun guns or mace or some alternative, just allowing this officer to not carry won't solve the problem. The nightmare scenario that Mace envisions is very close to mine, and it could happen never, or it could happen tomorrow. And the doctors have said epi pens don't always work.
So, to the next hurdle. The boss wants to offer this officer another position, non law enforcement, less pay, no pepper potential (or at least no more than you or I). This other position is only half time now, but the director wants to make it full time and offer it to the officer. James Sokolowski, you advised against "regarding as" by offering an accommodation. But what is the alternative - to just fire the officer? To tell the officer (who by the way wants to keep working and is willing to "take the risk"), no, you can't do law enforcement, and we're fixin 2 fire you (sorry too long in Texas), and wait for the officer to ask for another job? The division seems convinced that the officer will sue, is pretty sure the alternative job offer will be rejected. Wouldn't we look better in front of a jury if we offered the officer something other than the door? The division doesn't have "light duty" or "alternate duty", and at any rate this is a permanent condition. So, is it automatically an accommodation if we offer, and is that always bad? Could we construe this as part of the required dialog, in response to the employee's saying "I can keep doing my job, no problem. I will take the risk." And ultimately, the "undue threat" argument is a defense under ADA, no?
Oh, one more thing. I agree that the officer is not substantially limited in the major life function of working, since many other jobs are available not involving potential lethal exposures. But, what about an argument that the officer is or could be considered substantially impaired in the major life function of breathing? The epi pen could be a mitigating device, but the doctors are saying epi pens don't always work.
Back to the "regarded as" thing. I wouldn't offer him the alternative job as an accommodation; just offer it to him, period.
>"regarding as" by offering an accommodation.
>But what is the alternative - to just fire the
>officer?
I'd go ahead and offer him the other position if you want. I'd avoid ADA buzzwords like "disabled" and "accommodation." Stick to the medical facts he gave you, and don't make his condition a bigger deal than it is.
I'm not a lawyer, but the "regarding" cases I remember typically involve a boss who makes an amateur diagnosis of the employee's condition and then imposes more restrictions than necessary. Like laying off a pregnant ee because the boss decides, all by himself, that the job is too strenuous for her delicate condition.
If there's a big risk he'll sue, you might want to go ahead and talk to your own lawyer just to be safe.
Good luck!
James Sokolowski
HRhero.com
However, in this employee's situation, the doctor has stated that the EE may have an extreme or possibly uncontrollable reaction. Anaphylactic shock can come on in seconds/minutes, or can take hours to reach it's climax, and one person's reaction may change upon repeated exposure to the same stimulant. It can't accurately be predicted whether PST's EE would have time after exposure to complete a hurried detention procedure before administering an epinephrine injection to prevent a full-blown reaction, considering unknown chemical reaction time at any given time, combined with not knowing how long it may take to subdue an arrestee.
I'd suggest weighing the benefit of having this EE work in a police capacity versus the possible bad stuff if an incident does occur. Can you reduce the risk by modifying anything about the work environment? Can you increase the benefit by modifying the work environment?
Balloonman