Is it OK to Fire Worker Who Might Catch Ebola and ‘Infect America’?
Some people say bad facts make bad law. Recently, however, the U.S. 11th Circuit Court of Appeals (whose rulings apply to all Georgia employers) resisted the impulse to make bad law despite an employer’s completely unsympathetic decision to fire an employee after asking her to cancel a trip for fear she would catch Ebola while visiting a country that isn’t experiencing an Ebola outbreak and infect America. The 11th Circuit sensibly found the Equal Employment Opportunity Commission’s (EEOC) argument that the termination was unlawful under the Americans with Disabilities Act (ADA) because it was based on a perceived disability disregarded statutory language and plain English. Ultimately, the employer didn’t perceive the employee as having a disability, but as having the potential of becoming infected and disabled in the future. While that appears to violate the spirit of the ADA, as a concurring judge noted, it’s ultimately what the law says.
The Walking ‘Dread’ facts
The employee worked as a massage therapist for STME, LLC, a Massage Envy franchisee in Tampa, Florida. In September 2014, she asked for time off to visit her sister in Ghana, West Africa. Initially, the office manager approved her request for time off. Three days before the trip, however, the franchise’s owner met with the employee and told her that she would be fired if she went through with her travel plans.
The owner was specifically concerned that the employee would contract Ebola in Ghana and “bring it home to Tampa and infect everyone.” He was also worried about the “potentially catastrophic consequences that an outbreak of Ebola could pose to America.” Notably, while there was an Ebola epidemic in some West African countries at the time, Ghana wasn’t one of them.
Because the employee refused to cancel her trip, the owner terminated her employment during the meeting. The employee went on her trip and didn’t contract Ebola or infect America, but she wasn’t allowed to return to work. The EEOC filed an ADA lawsuit against the employer on her behalf.
Employee can’t catch a(n out)break
The EEOC argued the employer violated the ADA by:
- Terminating the employee and not permitting her to resume her duties upon her return from Ghana because it regarded her as disabled; and
- Terminating the employee and not permitting her to resume her duties upon her return from Ghana based on the owner’s fears and beliefs about Ebola and based on her association with people in Ghana who he believed were disabled by Ebola.
The employer asked the trial court to dismiss the case and prevailed. A three judge panel of the 11th Circuit affirmed the district court’s ruling.
The judges analyzed the ADA’s language carefully and simply couldn’t find any support for the EEOC’s theories because the employer didn’t regard the employee or her family as disabled. The court explained the statute clearly states that an employee meets the requirement of “being regarded as” having a disability if she establishes that she was subjected to a prohibited adverse action because of a perceived physical or mental impairment. The court further explained that an employer doesn’t engage in ADA discrimination “because of” a perceived physical impairment unless it actually believes the employee has the impairment.
The court concluded the ADA simply doesn’t cover a situation in which an employer perceives a person to be healthy with only the potential to become ill and disabled in the future because she voluntarily traveled overseas. The court noted its conclusion is consistent with the EEOC’s nonbinding interpretative guidelines, which state that a “characteristic predisposition to illness or disease” doesn’t constitute a physical impairment under the ADA on which a claim may be based. Similarly, the court found there was no association discrimination because the employer didn’t perceive the employee’s sister or other family members as having Ebola. EEOC v. STME, LLC, 2019 U.S. App. LEXIS 27499, *1 (11th Cir., Sept. 12, 2019).
Takeaways for employers
Although the employer was victorious in this case, you should tread carefully when you’re faced with ADA issues. This case could’ve had a different outcome, at least with regard to the association discrimination claim, if the owner had said something like, “Well, what if your sister already has Ebola and you don’t know it?” Alternatively, if he had made statements about not wanting to deal with her time off to recover from an illness, different ADA claims—and even claims under the Family and Medical Leave Act (FMLA)—might have come into play. You should be wary about firing employees in similar circumstances.
Moreover, the court’s language, particularly in the concurring opinion, suggests the judges struggled with the decision. Indeed, the concurring judge wrote that the employer engaged in the sort of stereotyping the ADA was meant to prevent, but ultimately the law states what it states. Again, one little extra comment by the owner, and this case could have been turned on its head. The good news for employers in the Southeast is, the 11th Circuit continues to focus on statutory language, which gives you a certain sense of predictability as you navigate the sometimes murky waters of employment law.
Subscribers to the Georgia Employment Law Letter can read the full issue on its website.