Although the Americans with Disabilities Act (ADA) protects qualified individuals who may be perceived as having a disability, that Act does not protect individuals who may be perceived as possibly becoming disabled in the future. EEOC v. STME, LLC, 11th Cir., No. 18-11121, 9/12/19.
Kimberly Lowe began working as a massage therapist at Massage Envy in Tampa, Florida in January 2012. Lowe was capable of performing her job duties, and did so in a satisfactory manner.
In September 2014, Lowe asked for time off to travel to Ghana, West Africa, to visit her sister. Although the company’s business manager approved that request, one of the company’s owners met with Lowe three days before the trip and told Lowe that he would fire her if she went ahead with those plans. The reason provided for that threat was the owner’s concern that Lowe would become infected with the Ebola virus if she traveled to Ghana, and would “bring it home to Tampa and infect everyone.” (At that time in 2014, there was an Ebola epidemic in Guinea, Liberia, and Sierra Leone, three other West African countries. There was, in fact, no Ebola outbreak in Ghana itself at the time.)
Lowe refused to cancel her trip; Massage Envy fired her from her job for that reason. Lowe then traveled to Ghana as she had planned, and did not contract the Ebola virus. Upon Lowe’s return, Massage Envy did not permit Lowe to return to her job.
Lowe filed a Charge of Discrimination, and the EEOC investigated the claim, ultimately determining that there was “reasonable cause” to believe that Massage Envy violated the ADA when it terminated Lowe’s employment, because it regarded her as disabled.
The EEOC then filed a lawsuit on Lowe’s behalf, alleging violation of the ADA by the employer. The company filed a motion to dismiss the complaint; the district court granted the motion, dismissing the case. The EEOC appealed that decision.
On appeal, the U.S. Court of Appeals for the 11th Circuit upheld the dismissal. It first stated that the ADA prohibits an employer from discriminating against a qualified individual when it perceives that individual as disabled. But it then pointed out that in order to trigger the ADA’s protections, the relevant time period for assessing the existence (or perception of the existence) of a disability is at “the time of the alleged discriminatory act.”
The question in this case, then, was whether or not Lowe was “regarded as” being disabled before her trip to Ghana. Here, the employer did not perceive Lowe as having Ebola at the point that he fired her – rather, he perceived her as “having the potential or possibility of becoming infected in the future if she traveled to Ghana.”
Based on that, the Eleventh Circuit decided that:
- Lowe’s heightened risk of developing Ebola in the future due to her visit to Ghana did not constitute a physical impairment; and, therefore
- Lowe was not perceived as having an existing impairment at the time that she was fired; and
- ADA’s “regarded as” prong does not apply when an employer “perceives an employee to be presently healthy with only the potential to become disabled in the future due to voluntary conduct.”
Although current guidance from the CDC advises that people who have had casual contact with infected individuals are at “minimal risk” for developing infection, the CDC is screening passengers on direct and connecting flights from Wuhan, China (the presumed epicenter of the virus) at five major U.S. airports: Atlanta, Chicago, New York City, San Francisco and Los Angeles.
The relevance of this case in light of the recent attention on the new coronavirus (referred to as 2019-nCoV) is clear. The Center for Disease Control expects more Americans to be diagnosed with the virus in the coming weeks and months. Worldwide, the number of confirmed cases is approaching 2,000.
This Eleventh Circuit decision should not be viewed as permission to fire individuals who ask to travel to countries or areas in which 2019-nCoV has appeared. However, employers should become knowledgeable about their own obligations and responsibilities with respect to their employees’ safety, and should continue to monitor travel restrictions and recommendations from the CDC regarding this outbreak.
For an animated version of the CDC’s “Take 3” flu poster, above, click here.