“Regarded as Having a Disability”: Can a Florida Business Fire an Employee Because They Might Contract a Disease in the Future?

EmplLaw2

The Americans with Disabilities Act (ADA) as Amended is a broadly interpreted federal statute. Not only does it prohibit employers from discriminating against employees based on their disability, but also a “perceived” disability. For example, employers cannot fire or discipline an employee due to a disability the employer thinks they may have, even if it turns out the employee actually has the disability.

Federal Courts Side with Tampa Massage Parlor, Rejects EEOC Lawsuit

But can a Florida employer fire an employee based on the possibility that they might develop a disability in the future? The U.S. 11th Circuit Court of Appeals recently addressed this somewhat unusual question in a disability discrimination case, Equal Employment Opportunity Commission v. STME, LLC, brought by the federal government against a Tampa-based massage parlor chain. The appeals court decided the employer ultimately did not break the law based on the facts presented.

An employee of the massage parlor asked her manager for time off. The employee planned to visit her sister, who lives in Ghana. Although the manager initially granted the request, one of the employer’s owners later told the employee she would be fired if she made the trip.

At the time of these events, in 2014, there was an Ebola epidemic affecting a number of countries in West Africa. Ghana was not one of the affected counties, but it was in relatively close proximity to Liberia and Guinea, which were.

The employer said it was concerned about the “potentially catastrophic consequences that an outbreak of Ebola could pose to America.” On that basis, the employer believed the employee’s trip to Ghana posed a substantial health risk as she might come into contact with someone who had Ebola. The employee refused to cancel her trip, however, leading to her termination. (The employee never developed Ebola, as the epidemic did not reach Ghana.)

The U.S. Equal Employment Opportunity Commission (EEOC) subsequently charged the employer with disability discrimination. The EEOC argued the employer’s actions violate the ADA because it “regarded” the employee as having a disability–i.e., that she might contract Ebola if she traveled to Ghana. The employee later filed her own lawsuit, accusing the employer of violating both federal and Florida state employment laws.

A federal judge ended up dismissing the case, holding that the employee “had no existing rights under the ADA when she was fired because she was not disabled and had not associated with anyone who was disabled.” The EEOC and the employee appealed this decision.

But the 11th Circuit agreed with the trial court’s reading of the law. The appeals court said the issue here was whether the employee was “regarded as having” a disability at the time she was fired. This does not cover situations where “an employer perceives a person to be presently healthy with only a potential to become ill and disabled in the future due to the voluntary conduct of overseas travel.”

Speak with an Attorney If You Need Additional Guidance

As noted above, this was an unusual case. As a general practice, Florida employers need to tread carefully when making employment decisions based on their perceptions of an employee’s current or future health status. The 11th Circuit’s decision does not alter the basic rule that it is illegal to fire or discipline an employee if you “regard” them as having a disability.

If your business requires additional guidance as to compliance with the Americans with Disabilities Act or a request for an accommodation, or if you are an employee who has questions about your own employment and disability accommodations, please consult with an experienced Florida employment law attorney as soon as possible.

Source:

media.ca11.uscourts.gov/opinions/pub/files/201811121.pdf

https://www.floridalaborlawyer.com/expanding-the-white-collar-exemption-what-the-u-s-labor-departments-new-overtime-regulations-effective-january-2020-mean-for-your-business-and-payroll/

Facebook Twitter LinkedIn