CACI No. 2544

Safety Risk

[Name of defendant] claims that [his/her/ nonbinary pronoun/its] conduct

was not discriminatory because, even with reasonable accommodations,

[name of plaintiff] was unable to perform at least one essential job duty

without endangering [[his/her/ nonbinary pronoun] health or safety/ [or]

[the health or safety of others]. To succeed on this defense, [name of

defendant] must prove all of the following:

1. That [describe job duty] was an essential job duty;

2. That there was no reasonable accommodation that would have

allowed [name of plaintiff] to perform this job duty without

endangering [[his/her/ nonbinary pronoun] health or safety/ [or]

[the health or safety of others]; and

3. That [name of plaintiff]’s performance of this job duty would

present an immediate and substantial degree of risk to [[him/her/

nonbinary pronoun]/ [or] others].

[However, it is not a defense to assert that [name of plaintiff] has a

disability with a future risk, as long as the disability does not presently

interfere with [his/her/ nonbinary pronoun] ability to perform the job in a

manner that will not endanger [him/her/ nonbinary pronoun]/ [or] others].]

In determining whether [name of defendant] has proved this defense,

factors that you may consider include the following:

a. The duration of the risk;

b. The nature and severity of the potential harm;

c. The likelihood that the potential harm would have occurred;

d. How imminent the potential harm was; [and]

e. Relevant information regarding [name of plaintiff]’s past work

history[;/and]

[f. [Specify other relevant factors].]

Y our consideration of these factors should be based on a reasonable

medical judgment that relies on the most current medical knowledge or

on the best available objective evidence.

New September 2003; Revised May 2019, November 2019