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24.9.613    DIRECT THREAT

(1) Direct threat means a significant risk of substantial harm to the health and safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation. 

(2) An employer that takes an adverse action against a person with a disability on the grounds that the person with a disability poses a direct threat shall perform an independent assessment of the risk of harm before taking the adverse employment action in question.

(3) A determination that an individual poses a direct threat must be based on an individualized assessment of the individual's present ability safely to perform the essential functions of the job. The assessment must be based on an evaluation of the employee, taking into account all relevant information regarding work and medical history. Assessment of medical history must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include:

(a) the duration of the risk;

(b) the nature and severity of the potential harm;

(c) the likelihood that the potential harm will occur; and

(d) the imminence of the potential harm.


History: 49-2-204, 49-3-106, MCA; IMP, 49-2-101, 49-3-101, MCA; NEW, 2017 MAR p. 91, Eff. 1/7/17.

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