September 12, 2019

The ADA: Past, Present, Perceived and…Potential Disabilities?

Does an employer discriminate against an employee in violation of the ADA when it takes an adverse employment action based on its fear of a future disability?

In 2014, the employer asked an employee to cancel her trip to Guyana, Africa. The employer feared that in light of the Ebola outbreak, she might contract the disease, return to work and infect others. The CDC described that outbreak as a “global epidemic.” When the employee refused to cancel her trip, the employer fired her. She filed a charge with the EEOC. Two years later (and you think your charges take a long time?!), the EEOC issued a notice finding “reasonable cause” for discrimination. In 2017, the EEOC filed suit and stated, “Such alleged conduct violates the ADA.”

Fast forward. Today, the 11th U.S. Circuit Court of Appeals disagreed.  It held, “…even construing the statute broadly, the terms of the ADA protect persons who experience discrimination because of a current, past, or perceived disability—not because of a potential future disability that a healthy person may experience later.”

Tip #1: Consider all the implications before you take an adverse employment action like firing or not hiring an employee. I think this case begs the question, did the EEOC and employee get this one wrong?  I wonder if the outcome would have been different if they had charged the employer with discrimination in violation of Title VII based on national origin and/or race.  During the outbreak, others had similar speculations. There were hints of such charges and claims when employees who traveled to Africa were not permitted to return to work until they submitted to Ebola screening, while employees traveling to other countries were not subjected to such testing.

Tip #2: Remember, the EEOC brought this lawsuit. A claim of discrimination must generally be filed as a charge with the EEOC (or a state/local agency) before it can be filed as a claim in court.  The EEOC’s position in this case was, “the ADA is broad enough to prohibit an employer from firing an employee because the employer perceives that the employee will imminently contract a disease in the near future.” So, if your employee files a similar charge, the odds you are going to lose Round 1.

Tip #3: While the EEOC did not issue specific guidance related to the Ebola outbreak. However, it has issued guidance for employers, “Pandemic Preparedness in the Workplace and the Americans with Disabilities Act.”  One recommendation includes, “During a pandemic, employers should rely on the latest CDC and state or local public health assessments.” So, whether your concern is related to the flue, bedbugs, an epidemic or pandemic you may want to visit the CDC website and see what guidance they have for how employers should handle related concerns. If that’s not clear, contact your Human Resources representative and/or employment counsel.