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 reaffirms the priority placed on NRC requirements designed to protect public health and safety.
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.
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.
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.
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.” To establish a prima facie case under the ADA, Mr. McNelis had to show that he was a “qualified individual with a disability.” To be “qualified,” however, an individual must be able to “perform the essential functions of the position.” The district court dismissed Mr. McNelis’s claim, and he appealed to the Third Circuit.
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:
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:
Morgan Lewis will continue to follow FFD and access authorization issues and will provide updates in future publications.
If you have any questions or would like more information on the issues discussed in this LawFlash, please contact any of the following Morgan Lewis lawyers:
Andrea N. Threet
Michelle Seldin Silverman
Alicia J. Farquhar
 No. 16-3883 (3d Cir., Aug. 15, 2017).
 See 10 C.F.R. § 26.77(b).
 See 10 C.F.R § 73.56(f).
 McNelis at 7.
 29 C.F.R. Part 1630 (Appendix).
 McNelis at 11.
 McNelis at 11.
 See 10 C.F.R. § 26.189(d).
 See Murphy v. United Parcel Serv., Inc., 527 U.S. 516, 522 (1999).