Employee who might get Ebola not “regarded as” having a Disability

pexels-photo-297755.jpegA recent decision out of Florida provides an interesting analysis of the ADA’s definition of “regarded as” having a disability.  The case involved an employee who requested time off from work to travel to Ghana in West Africa.  Right before the employee left, the employer terminated the employee out of concern that she would be infected with Ebola if she traveled to Ghana, and would bring the disease home and infect her coworkers and clients.  When the employee returned from Ghana (Ebola free) she filed a charge with the EEOC alleging, in part, that she was terminated because her employer perceived her as disabled or as having the potential to be disabled.

The ADA prohibits discrimination against qualified individuals on the basis of disability, which is defined to include individuals who are “regarded as” having a disability.  An individual is “regarded as” having a disability when he or she is subjected to a prohibited action because of “an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.  The ADA regulations clarify that a disability does not include characteristic predisposition to illness or disease.

The employer argued that because the employee was terminated because she was predisposed to catching Ebola in the future, the employer’s actions did not fall under the protection of the ADA.  The Court agreed with the employer, finding that the “regarded as” prong of the ADA required proof that an employer believes that an employee is presently impaired (even where that belief is mistaken), rather than where an employer perceives an employee to be healthy with the potential to become disabled in the future due to voluntary conduct.

What does this mean for employers?  Generally, that there is some protection under the ADA for an employer (no matter how ignorant) when an employee is terminated based on an employer’s misguided belief that the employee will get sick in the future.  Specifically, it is a reminder that a perfectly healthy employee can bring a claim for disability discrimination if they can show that their employer perceives the employee to be disabled.

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