ADA Did Not Cover Worker at Risk of Contracting Ebola

 

By W. Kevin Smith and Jacob W. Crouse December 3, 2019
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​The Americans with Disabilities Act (ADA) does not protect people against whom an adverse employment action is taken because of speculation concerning a potential disability such as the Ebola virus, according to the 11th U.S. Circuit Court of Appeals. So an employer was entitled to dismissal of the disability-discrimination claims of the plaintiffs—the Equal Employment Opportunity Commission (EEOC) and a massage therapist.

The massage therapist requested time off from work to visit her sister in Ghana. Her manager initially approved this request, but one of the employer's owners later informed the employee that she would be fired if she proceeded with her travel plans. The stated reason for this adverse action was the owner's belief that the employee could contract the Ebola virus during her trip and infect others upon her return to the United States.

The employee refused to cancel her trip and was fired prior to traveling to Ghana. Neither the employee nor her sister ever contracted the virus.

The employee filed a discrimination charge with the EEOC, which sued the employer, Massage Envy, alleging disability discrimination. The district court dismissed the claim.  

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

On appeal, the EEOC asserted two primary bases for the claim of disability discrimination. First, the employer allegedly regarded the employee as disabled because it perceived that she might contract the Ebola virus. Second, the employer allegedly interfered with the right of the employee to associate with persons with disabilities, such as people in Ghana who had contracted Ebola.

In addressing the discrimination claim, the 11th Circuit concluded that the "regarded as" definition of disability in the ADA does not cover circumstances when an employer takes an adverse employment action against an employee known to be presently healthy with only the potential to become ill and disabled in the future due to voluntary conduct. The 11th Circuit further concluded that the right to associate with persons with disabilities does not include an employee's potential casual association with unknown people with disabilities.

The 11th Circuit affirmed the district court's judgment in favor of the employer.

EEOC and Lowe v. STME LLC, 11th Cir., Nos. 18-11121, 18-12277 (Sept. 12, 2019).

Professional Pointer: If the employee in this case had a closer association with individuals with disabilities, her claim for association disability discrimination may have survived dismissal.

W. Kevin Smith and Jacob W. Crouse are attorneys with Smith and Smith Attorneys, the Worklaw® Network member firm in Louisville, Ky.

[Visit SHRM's resource page on the Americans with Disabilities Act.]

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