Disability Rights

OPINION

TASHIMA, Circuit Judge:

In this action under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. ("ADA"), we held in an earlier opinion that the "direct threat" defense provided by 42 U.S.C. § 12113 in an ADA discrimination action does not include threats to the employee's own health. Echazabal v. Chevron U.S.A., Inc., 226 F.3d 1063, 1070 (9th Cir. 2000). In Chevron U.S.A. Inc. v. Echazabal, 122 S. Ct. 2045 (2002) ("Echazabal"), the Supreme Court reversed and remanded,

holding that the direct threat defense includes threats to an employee's own health. It also held the EEOC's direct threat regulation, 29 C.F.R. § 1630.15(b)(2) (defining the defense to include threats to the employee), to be valid. Id.

In light of Echazabal, the only remaining issue on remand is whether Chevron has met the requirements for assertion of the direct threat defense. Specifically, we must decide whether Chevron based its decision upon " `a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence,' and upon an expressly `individualized assessment of the individual's present ability to safely perform the essential functions of the job,' reached after considering, among other things, the imminence of the risk and the severity of the harm portended."Echazabal, 122 S. Ct. at 2053 (quoting 29 C.F.R. § 1630.2(r) (2001)). We conclude that, on summary judgment, material issues of fact remain; therefore, the district court erred in granting summary judgment to Chevron. We reverse and remand for further proceedings.