WHO HAS THE PHYSICALLY TOUGHER JOB? BORDER PATROL OR ICE?
As If DHS did not have enough problems on its hands, it is spending time creating stupid ones. Back in 2017 ICE rejected an application from a Border Patrol Agent on the grounds that the ICE job was a more physically demanding one than the Border Patrol Agent could not do safely. ICE ruled that the Border Patrol Agent’s disability (Aortic Valve Replacement), made him medically unfit to chase the same immigrants ICE does.
When ICE originally raised questions, the employee’s cardiologist wrote that he was asymptomatic with excellent functional capacity, he saw no contraindications for his employment in law enforcement, and that the employee understood being on warfarin increased the risk of bleeding. The ICE officials, however, ruled that his mechanical heart valve and the need for anti-coagulant medications would present an excessive hazard to Complainant due to the risk of injury related to blunt or sharp force trauma inherent in performing duties in law enforcement. DUUUHHHH! Did they think Border Patrol Agents only encountered people with Nerf guns and cardboard knives? It turns out, ICE has a policy that states in relevant part: PACEMAKERS or PROSTHETIC VALVES are generally disqualifying. Any other condition or post-surgical management that requires the use of coumadin or other anti-coagulants are generally disqualifying.
Then in a typical federal manager move the Chair of the Medical Review Board stated that the risk was not just to Complainant, but to his law enforcement colleagues and the mission of protecting national security. Why stop the exaggeration and bloviating there? Why not say his potential to bleed threatens not just humanity itself, but inter-galactic tranquility, and the Lord God in Heaven’s divine plan for everything she has created.
While the ICE hierarchy bought its own line of BS, EEOC did not when the employee filed a disability discrimination claim. It reversed ICE and gave the employee the job with some considerable retroactive compensation. It remined ICE that to prove an applicant creates a “direct threat,” the Agency must show more than that a person stands some elevated risk of future injury. Rather, a person is a “direct threat” if he poses a “significant risk of substantial harm” to the health and safety of himself or others which cannot be eliminated or reduced to an acceptable level by reasonable accommodation. 29 C.F.R. § 1630.2(r). The direct threat evaluation must be based on an individualized assessment of the person’s present ability to safely perform the essential functions of the job. Moreover, this assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.
In determining whether an individual would pose a direct threat, the factors EEOC demands be considered include: (1) the duration of the risk, (2) the nature and severity of the potential harm, (3) the likelihood that the potential harm will occur, and (4) the imminence of the potential harm. Moreover, the burden is on the Agency to prove direct threat. Massingill v. Dep’t of Veterans Affairs, EEOC No. 01964890 (July 14, 2000). A determination as to whether an individual poses a direct threat cannot be based, except in cases of the most apparent nature, merely on medical reports. Selix v. United States Postal Service, EEOC No. 01970153 (March 16, 2000). Relevant evidence may include input from the individual with a disability, his work history or experiences in previous positions, and opinions of medical doctors who have expertise in the particular disability or direct knowledge of the individual with the disability.
Although enough millions are funneled into ICE HR and EEO operations that it should have known better, the evidentiary record showed that the Medical Review Board relied on its blanket determination that warfarin users have an increased risk of harm, and that a Deportation Officer’s duties could expose Complainant to a greater risk of injury, all while ignoring his unique work history and discounting the opinion of his cardiologist. In addition, the Agency did not consider potential accommodations that could mitigate the alleged direct threat. As such, we conclude the Agency failed to meet its burden of proving direct threat. For more details on DHS HR/EEO incompetence, check out Alonzo N., v. Kevin McAleenan, Acting Secretary, DHS, EEOC No. 0120180739