Court rules that the ADA does not create a loophole to NRC fitness-for-duty and security regulations.

On August 15, for the first time, a US court of appeals ruled that the US Nuclear Regulatory Commission’s (NRC’s) fitness-for-duty (FFD) and physical protection regulations trump certain employee protections under the Americans with Disabilities Act (ADA). This decision by the US Court of Appeals for the Third Circuit in McNelis v. Pennsylvania Power & Light Company^[1] reaffirms the priority placed on NRC requirements designed to protect public health and safety.

Background

Plaintiff Daryle McNelis was an armed security guard at the Pennsylvania Power & Light Company’s (PPL’s) Susquehanna nuclear power plant from 2009 to 2012. As the licensed operator of a nuclear power plant, PPL is required by NRC regulations to implement an FFD program to ensure that employees are mentally and physically able to safely perform their duties. If an employee’s fitness is in question, NRC regulations require the licensee to take immediate action to prevent the individual from performing his or her job.^[2]

PPL also is obligated—in accordance with NRC physical protection requirements—to maintain an access authorization program to monitor employees with access to sensitive areas to ensure that such employees are trustworthy and reliable and protect against threats to public health or safety. To meet this obligation, NRC licensees such as PPL are required to administer behavioral observation programs to detect aberrant behavior caused by factors such as substance abuse or other disturbances in an employee’s personality or psychopathology. If an employee’s trustworthiness or reliability comes into question, PPL is required to terminate the employee’s unescorted access.^[3]

In the time leading up to his termination, Mr. McNelis experienced personal and mental health problems. He became paranoid that various items in his home were listening devices and also abused alcohol and other drugs, prompting his wife and children to move out of the family home. Sometime after his family moved out, police received an anonymous 911 call warning that Mr. McNelis planned to go to his children’s schools to pick them up, and that he was possibly armed. Consistent with PPL’s behavioral observation program requirements, a friend and coworker of Mr. McNelis familiar with his behavior raised a concern to PPL supervision. This prompted PPL to suspend Mr. McNelis’s unescorted access pending examination by a qualified professional—in this case, an independent psychologist. The psychologist concluded that Mr. McNelis was not fit for duty, and PPL subsequently ended his employment.

Plaintiff’s ADA Claims and Arguments

Mr. McNelis filed suit in district court, alleging that his termination violated the ADA because “he was erroneously regarded as having a disability in the form of alcoholism, mental illness and/or illegal drug use, and that this misperception was a motivating factor in his firing.”^[4] To establish a prima facie case under the ADA, Mr. McNelis had to show that he was a “qualified individual with a disability.”^[5] To be “qualified,” however, an individual must be able to “perform the essential functions of the position.”^[6] The district court dismissed Mr. McNelis’s claim, and he appealed to the Third Circuit.

The Third Circuit’s Decision

In affirming the district court’s decision, the Third Circuit reasoned that Mr. McNelis was not “qualified” under the ADA because he could not perform the essential functions of his security officer job. Specifically, NRC regulations require nuclear security officers to be fit for duty and to maintain unescorted security clearance. Because Mr. McNelis was deemed unfit for duty and unable to maintain his unescorted access, he was unable to maintain his position. As a result, the court reasoned, his claim failed as a matter of law.

In reaching its conclusion, the Third Circuit considered but rejected each of Mr. McNelis’s counterarguments:

• Mr. McNelis argued that a judgment for PPL would diminish ADA protections for workers in sensitive positions in the nuclear industry. But the court found this to be “a feature—not a bug—of the nuclear regulatory scheme,” noting that the ADA applies differently to professions (e.g., nuclear security officers) that implicate the public welfare.^[7] NRC regulations, in particular, would be ineffective in protecting the public if they exempted individuals with disabilities: “[T]he fact that a certain trait or behavior coincides with a recognized disability does not make it any less dangerous to the public.”^[8]

• Mr. McNelis argued that he should have been given an opportunity to challenge the conclusions of the psychologist and PPL. The court, however, noted that the “impartial and independent internal management review” that PPL afforded to Mr. McNelis was in line with the process provided by NRC regulations in 10 C.F.R § 73.56(l). As such, Mr. McNelis was not entitled to any additional processes beyond those delineated in the regulations.

• Mr. McNelis claimed that his termination was discriminatory because PPL typically gave employees an opportunity to regain access before firing them. But the court held that the fact that PPL offered certain accommodations to some employees as a matter of good faith did not mean that such accommodations must be extended to every employee as a matter of law—even when PPL’s company policy generally allows employees to comply with treatment recommendations before termination.

• Mr. McNelis asserted that PPL was wrong for relying on the psychologist’s determination that he was not fit for duty, and that PPL should have considered other evidence Mr. McNelis submitted from his personal doctors. The court disagreed, noting that NRC regulations specifically prohibited PPL from questioning the determination of fitness after it was made by the psychologist.^[9] Additionally, the US Supreme Court has held that in ADA cases, a court should not “second guess” a physician’s determination that an employee failed to meet the regulatory requirements of his or her job.^[10]

Key Takeaways

Although McNelis v. PPL marks the first time a court of appeals has addressed the interplay between the ADA and NRC’s FFD regulations, many lower courts are in agreement that nuclear employees who have lost their security clearance or have been deemed unfit for duty are not qualified employees under the ADA. Ultimately, McNelis v. PPL reaffirms the priority placed on NRC requirements designed to protect public health and safety—including where those requirements intersect with the protections of the ADA. In so doing, the decision prevents NRC licensees from having to make a Hobson’s choice of choosing between ADA liability and compliance with NRC FFD and physical protection requirements when making related employment decisions. McNelis v. PPL should serve as a reminder to NRC licensees of a few key points regarding FFD and physical protection programs:

• NRC regulations require nuclear power plant operators to monitor for traits and behaviors that in other contexts might violate the ADA. Specifically, an NRC licensee employee with a disability that poses a severe and imminent threat to public safety may not be a “qualified” employee under the ADA.

• Internal appeals processes for FFD determinations must be “impartial and independent” and align with NRC regulations. Further opportunities to dispute an FFD determination may be written into company procedures but are not required under the ADA. When further opportunities exist in company procedures, following such procedures will reduce legal exposure.

• While the court ruled that accommodations offered to other employees did not need to be extended to McNelis as a matter of law (even though company procedure allowed for them), employers should be mindful that a failure to follow procedures and/or treating similarly situated employees differently can be treated as evidence of discrimination.

_{[1] No. 16-3883 (3d Cir., Aug. 15, 2017).}

_{[2] See 10 C.F.R. § 26.77(b).}

_{[3] See 10 C.F.R § 73.56(f).}

_{[4] McNelis at 7.}

_[5] Id.

_{[6] 29 C.F.R. Part 1630 (Appendix).}

_{[7] McNelis at 11.}

_{[8] McNelis at 11.}

_{[9] See 10 C.F.R. § 26.189(d).}

_{[10] See Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 522 (1999).}