You Make The Call: Woman fired in anticipation that she’d contract a virus

“You’re not going to believe this,” said HR Manager Alan Frankel. “Cassie went to the EEOC, which is now suing us for disability discrimination.”

“You’re right,” said Supervisor Margie Brunton. “I don’t believe it.”

“The whole thing started when Cassie asked for time off to visit her sister in Ghana in West Africa,” said Alan. “We initially approved her request. But three days before she was supposed to leave, we became concerned she’d contract the Ebola virus in Ghana, then come back and infect everyone else working here.”

“That’s correct,” said Margie. “Unfortunately, Cassie refused to cancel her trip, so we fired her before she even left. Nevertheless, she still traveled to Ghana as planned. But Cassie was the one who disregarded our legitimate request.”

“Cassie says she didn’t even get Ebola while she was in Ghana,” said Alan. “In fact, as it turned out, there was no Ebola outbreak in Ghana. Nonetheless, we still didn’t let her return to her old job.”

“We had a legitimate safety concern,” said Margie. “At that time, there was an Ebola epidemic in three other nearby countries in West Africa. However, I still don’t see how Cassie can claim she’s disabled.”

“Cassie says that we regarded her as disabled based on our perception that she might contract a virus, then fired her based on what she considered to be our false assumption,” said Alan.

“Cassie is grasping at straws here,” said Margie. “She’s not even disabled, so she can’t sue us under the ADA. Let’s fight this.”

Did the company win?

Yes. The company won. The court said that the woman couldn’t proceed with her lawsuit because she wasn’t considered a disabled person within the meaning of the ADA. Yes, said the judge, workers who aren’t necessarily disabled can sue if they can prove that their employer perceived them to be disabled.

In this case, however, the employer didn’t treat the woman as though she were disabled. The employer simply didn’t want her to travel to a foreign country and come back with a virus that could’ve infected other workers. Speculation about whether an employee will develop an illness isn’t the same as treating someone as though he or she is actually disabled.

Bottom line: The ADA applies only to workers with a current or past disability or a current perceived disability, not to those who might suffer a potential future disability.

What it means: Managing workers with coronavirus

The ruling in this case is particularly relevant for employers trying to figure out what to do with workers who might have the coronavirus. For instance, if someone is fired because the employer thinks he or she might have the virus but the staffer isn’t actually infected, the worker is unlikely to prevail in an ADA discrimination lawsuit.

If, however, a worker actually has COVID-19 and is fired, it’s likely that the person would prevail in a bias case by arguing that the termination was based on a perceived disability.

Based on EEOC v. STME.

(From the April 3, 2020, issue of HR Manager’s Legal Alert for Supervisors)