California lets an employer refuse to hire or keep a worker whose disability makes the job unsafe, but the bar is high. The Civil Rights Department’s regulation, 2 CCR section 11067, requires proof that no reasonable accommodation would avoid an “imminent and substantial degree of risk” to the worker or others. A risk that might develop someday doesn’t qualify. The defense is won or lost on the medical evidence and the interactive process that came first.
Where does the health and safety defense come from?
From the statute itself. Government Code section 12940(a)(1) says FEHA does not prohibit refusing to hire or discharging an employee with a disability if the employee “cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations.”
The regulation spells out how it works. Section 11067(c) makes it a permissible defense to show that, “after engaging in the interactive process, there is no reasonable accommodation that would allow the applicant or employee to perform the essential functions of the position in question in a manner that would not endanger the health or safety of others because the job imposes an imminent and substantial degree of risk to others.” Subdivision (b) sets the same test for risk to the worker.
The burden sits with the employer. That’s the practical point most managers miss. A plaintiff doesn’t have to prove the job was safe. The company has to prove it wasn’t, and that nothing would have fixed it.
Why isn’t a future risk enough?
Because the regulation rules it out. Section 11067(d) says “it is no defense to assert that an individual with a disability has a condition or a disease with a future risk, so long as the condition or disease does not presently interfere with his or her ability to perform the job” safely.
This is where many safety decisions go wrong. A forklift operator discloses a seizure disorder that has been controlled for years. A warehouse worker has a back condition that could worsen. A manager decides the risk isn’t worth it. Without evidence that the condition creates a present and serious risk in that job, the decision looks like discrimination based on a diagnosis, and a jury may see it that way.
What factors decide whether the risk is real?
Five, at a minimum. Section 11067(e) lists “the duration of the risk,” “the nature and severity of the potential harm,” “the likelihood that potential harm will occur,” “the imminence of the potential harm,” and “consideration of relevant information about an employee’s past work history.”
The same subdivision says the analysis “should be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” In practice, that means an individualized assessment of this worker in this job. A generic belief about a condition, a manager’s experience with a different employee, or an internet search won’t carry it.
The worker’s own track record matters too. An employee who has done the job safely for years with the same condition has strong evidence that the risk isn’t imminent. An employer relying on this defense should be able to explain what changed.
Does the interactive process come first?
Yes, and skipping it can sink the defense. Both subdivisions (b) and (c) apply only “after engaging in the interactive process.” An employer that removes someone from a job for safety reasons without exploring accommodations, such as modified duties, equipment, a different shift, or a transfer to a vacant role, has a defense with a missing first step.
California also allows a separate claim for failing to engage in the interactive process, apart from discrimination. A company can face that claim even if it later proves the safety risk was real. The firm covers that claim in a post on failing to engage in the interactive process.
Safety-based decisions and how they hold up
| Basis for the decision | How it holds up | Rule |
|---|---|---|
| Individualized medical opinion of present, substantial risk, after accommodations explored | Strongest footing | 2 CCR 11067(b), (c), (e) |
| Risk to coworkers or the public in a safety-sensitive role, documented | Defensible with evidence | 2 CCR 11067(c) |
| Condition might worsen in the future | Not a defense | 2 CCR 11067(d) |
| Generalized belief about a diagnosis | Weak, and looks like stereotyping | 2 CCR 11067(e) |
| No interactive process before removal | Defense undermined, and a separate claim is possible | 2 CCR 11067(b), (c) |
Before acting on a safety concern
- Preserve the medical notes, fitness-for-duty results, job description, incident reports, and every email or text about the worker’s condition.
- Calendar any deadline on a CRD complaint, demand letter, or lawsuit, and check the arbitration agreement and whether the EPLI policy requires prompt notice.
- Identify who raised the safety concern and who made the decision, and keep the worker’s pay and status steady while the review is pending where possible.
- Pull the essential functions, the specific hazards of the role, and the worker’s safety history in the job.
- Get an individualized medical assessment and talk to a lawyer before removing, refusing, or terminating anyone on safety grounds.
The firm’s page on California employment defense explains how it defends disability claims for employers.
Direct threat questions from California employers
Can we rely on the federal ADA direct threat standard?
Not by itself. The federal rule is similar, but California’s regulation is the one a state court applies to a FEHA claim, and it uses its own wording, including the “imminent and substantial” risk standard in section 11067. An employer with California workers should build its file to meet the California test, which also usually satisfies the federal one.
Does a doctor’s note restricting the worker settle the question?
It helps but rarely ends it. A restriction from the worker’s own provider is evidence of what the worker can safely do, and the employer should take it seriously. The next step is still the interactive process: whether the restriction can be accommodated in the current job or another vacant one. A restriction is a starting point for that discussion, not a reason to end it.
Can we require a fitness-for-duty exam before deciding?
Often yes, if it’s job-related and consistent with business necessity. FEHA limits medical exams of current employees, so the reason for the exam should be documented and tied to the specific safety concern. The results should go to the medical file, separate from the personnel file, and be shared only with people who need them.
What about risk only to the employee, not others?
Section 11067(b) covers that case, but courts and juries tend to scrutinize it closely, because it can look paternalistic. The employer still needs an imminent and substantial risk, individualized evidence, and a showing that no accommodation would work.
If a worker says you removed them for safety reasons that weren’t real
If your company has received a CRD complaint or lawsuit over a decision based on a worker’s medical condition and safety, the medical evidence and the accommodation record usually decide how strong the claim is. Rosenberger + Kawabata represents employers defending employment lawsuits and claims through its business litigation practice, including claims involving disability discrimination and safety-based removals. Contact Rosenberger + Kawabata online for a confidential consultation, or call (310) 894-6921.
Sources
The statute is Government Code section 12940. The regulation is California Code of Regulations, title 2, section 11067.
This post is general information about California and federal employment law as of November 7, 2026. It is not legal advice, and reading it does not create an attorney-client relationship. Employment statutes, regulations, and court decisions change often, and the outcome of any claim depends on its facts. Past results do not guarantee future outcomes.