3d Cir. Model Jury Instr. (Civil) 9.3.1

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Last updated March 2026

“a significant risk to the health or safety of others that cannot be eliminated by reasonable 30

accommodation.” 42 U.S.C. § 12111(3). 48 The regulations, which extend the idea of threat to 31

encompass threats to the individual himself or herself as well as to others, see 29 C.F.R. § 32

1630.15(b)(2) (2019),49 provide: 33

Direct Threat means a significant risk of substantial harm to the health or 34

safety of the individual or others that cannot be eliminated or reduced by reasonable 35

accommodation. The determination that an individual poses a “direct threat” shall 36

be based on an individualized assessment of the individual ’s present ability to 37

safely perform the essential functions of the job. This assessment shall be based on 38

a reasonable medical judgment that relies on the most current medical knowledge 39

and/or on the best available objective evidence. In determining whether an 40

individual would pose a direct threat, the factors to be considered include: 41

(1) The duration of the risk; 42

(2) The nature and severity of the potential harm; 43

(3) The likelihood that the potential harm will occur; and 44

(4) The imminence of the potential harm. 45

29 C.F.R. § 1630.2(r) (2019). 46

The EEOC ’s interpretive guidance provides further detail on the level of risk that 47

constitutes a direct threat: “[T]he employer must determine whether a reasonable accommodation 48

would either eliminate the risk or reduce it to an acceptable level…. An employer … is not 49

“It may be a defense to a charge of discrimination under this chapter that an alleged

application of qualification standards, tests, or selection criteria that screen out or tend to screen

out or otherwise deny a job or benefit to an individual with a disability has been shown to be job-related and consistent with business necessity, and such performance cannot be accomplished by

reasonable accommodation, as required under this subchapter. Section 12113(b) specifies that

“[t]he term ‘qualification standards’ may include a requirement that an individual shall not pose

a direct threat to the health or safety of other individuals in the workplace.” See also Chevron

U.S.A. Inc. v. Echazabal, 536 U.S. 73, 78 (2002) (terming the qualification-standards defense,

including the direct-threat defense, an “affirmative defense”).

48 See Turner v. Hershey Chocolate U.S. , 440 F.3d 604, 615 (3d Cir. 2006) (addressing case in

which employer had required its employees to rotate among three production lines due to concerns

over repetitive stress injuries, and refusing to “conclude as a matter of law” that plaintiff’s proposal

that she not be required to rotate among all three lines “would pose a ‘direct threat’ to [defendant’s]

employees”).

49 The Supreme Court has held that Section 1630.15(b)(2) ’s extension of the concept of threat to

encompass threats to the employee himself or herself does not exceed the scope of permissible

rulemaking under the ADA. See Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73, 87 (2002).