The Americans with Disabilities Act not only provides protections for disabled persons but also those “regarded as” having a disability, even if they are healthy. On September 12, the Eleventh Circuit Court of Appeals (which includes Georgia) rejected a claim from an employee who tried to extend the “regarded as” basis to include fear of a potential future disability. In EEOC v. STME, LLC, the agency sued an employer that allegedly terminated an employee who was about to travel to West Africa over fears that she would contract the Ebola virus and transmit it once she returned to work.
On appeal, the Eleventh Circuit affirmed the district’s court’s dismissal of the EEOC’s complaint. The ADA’s “regarded as” prong does not extend to claims by healthy employees that their employers feared that they would become disabled in the future due to voluntary conduct such as overseas travel. While the ADA protects against discrimination due to a current, past, or incorrectly perceived disability, it does not include possible future medical conditions.
Employers should take note that adverse action against an employee or applicant due to a genetic predisposition toward a disabling medical condition would likely violate both the ADA and Genetic Information Nondiscrimination Act (GINA). In this case, there was no allegation that the plaintiff was particularly susceptible to infection based on some existing medical or genetic condition
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