Monday, January 27, 2020

Does the ADA protect employees who travel to areas that potentially expose them to coronavirus?

Coronavirus is 2020’s pandemic du jour. It’s a serious, and potentially deadly, respiratory virus that (likely) started in Wuhan, China, and has now made its way into the U.S. with five confirmed cases.

Suppose you fire an employee who you fear might have been exposed to the virus. She exhibits no symptoms, but because she had recently traveled to an area in which she could have been exposed, you think it’s better safe than sorry not to have her work for you anymore. She sues for disability discrimination, claiming that you “regarded her” as disabled. Does she win her case? The outcome might surprise you.

Late last year, the 11th Circuit Court of Appeals dealt with a similar issue in a case involving an employee fired after she traveled to Ghana, African, to visit her sister during the height of the Ebola outbreak. There was zero evidence she had been exposed, but her employer fired her, as it told her it would three days before her trip if she traveled as planned. The Court concluded that the ADA does not cover “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.”

As the Court explained:

The EEOC’s own interpretive guidance … states that a predisposition to developing an illness or disease is not a physical impairment. If a predisposition to developing a disease in the future is not a physical impairment, by analogy, we do not see how Lowe’s heightened risk of developing the disease Ebola in the future due to her visit to Ghana constitutes a physical impairment either.

Just because this Court says that you can fire an employee in these circumstances doesn’t mean that you should. What should you do to manage health and safety risks from an employee who could have been exposed to coronavirus?

I shared my thoughts on a similar issue all the way in 2009 about the swine flu (here and here). Dan Schwartz, at his Connecticut Employment Law Blog, shared similar thoughts last week specifically about the coronavirus.

My bottom line—prepare, don’t panic or overreact.

* Image by Łukasz Dyłka from Pixabay