Circuit Courts Continue to Rule in Agreement that Future Potential Disabilities are not a “Disability” under the ADA

The Seventh and Eleventh Circuit Courts of Appeal recently joined the Eighth, Ninth, and Tenth Circuits, in holding that individuals with no current disability cannot be regarded as disabled under the Americans with Disabilities Act (ADA).  The mere possibility or even likelihood the individual will develop an impairment or disability in the future is not sufficient to sustain a cause of action under the ADA.  In Shell v. Burlington Northern Santa Fe Railway Co., 941 F.3d 331 (7th Cir. 2019) and EEOC v. STME, LLC, 938 F.3d 1305 (11th Cir. 2019) the Seventh and Eleventh Circuits respectively, refused to extend protections under the ADA to employees with a “perceived risk” of potential impairment.

In Shell, a transportation company refused to hire a job applicant with a body mass index (BMI) over 40, which is classified as Class III Obesity or “extreme” or “severe” obesity.  The Defendant had a policy that prohibited individuals with a BMI over 40 from being employed in “safety-sensitive” positions, due to individuals with Class III Obesity being at an increased risk for sleep apnea, diabetes, or heart disease, conditions that could lead to dangerous consequences while on the job.  The Seventh Circuit first noted that obesity in and of itself does not qualify as a disability under the ADA, unless it is caused by an underlying physiological disorder or condition.  Likewise, obesity alone does not qualify as a disability even if the individual’s obesity may increase the likelihood that he or she will develop a future qualifying ADA disabling impairment.  The condition of being “regarded as” having an impairment applies when an individual has been subjected to an impairment, in a past or present sense, not a perceived future impairment that has not yet occurred.  Thus, the Seventh Circuit held that since Defendant only declined to hire the Plaintiff based on a perceived future impairment and not a current ADA disability, the ADA did not afford protection to the Plaintiff.

The employer in STME fired an employee who had traveled to Ghana during an Ebola outbreak in countries neighboring Ghana, even after the employer raised concerns about the Plaintiff making such a trip.  The employer’s decision was based on a potential future impairment, which is not protected by the ADA under the “regarded as” theory of recovery, which requires a current impairment.  The potential physical or perceived impairment of Ebola was not enough to get ADA protection; the Eleventh Circuit found there was no violation of the ADA in the firing of the Plaintiff.

Both cases demonstrate a continued trend at the appellate level of federal courts that future or potential impairments are not protected under the ADA.  This should be good news to employers who have concerns about potential impairments with employees and whether they feel such concerns could impact the ability for that employee to perform their job functions.

VW Contributor: Ryan J. Coufal
© 2020 Vandenack Weaver LLC
For more information, Contact Us

Corporate Wellness Programs Receive Scrutiny From the EEOC

The United States Equal Opportunity Commission (EEOC) has filed a petition, their third in three months, regarding a corporate wellness program. The latest petition alleges that Honeywell International, Inc. violated the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act (GINA) through the administration of workplace biometric screening.

The program is similar to those seen at companies across America. The employee receives health care discounts and other financial benefits for undergoing workplace biometric screening and choosing healthy lifestyles. The EEOC claims the program violates the law because it is an involuntary, non-work related, medical inquiry. Second, the EEOC alleges the employer is illegally inducing employees to provide family medical history. If the court views the program similarly, it would be a violation of the ADA and GINA.

It is unclear what this challenge will mean for corporate wellness programs.  In the short term, with the end of year approaching, it will unlikely have an immediate impact. However, it will be important to monitor the evolution of the challenges because it could  change how these programs must be administered or even whether these programs can be offered.

© 2014 Parsonage Vandenack Williams LLC

For more information, Contact Us

When Does an Employer Have to Make Accommodations Under ADA?

An Employee Benefits FAQ with M. Thomas Langan II.

The ADA applies to state and local governments, as well as private employers with 15 or more employees. The ADA generally prohibits employers from discriminating against qualified individuals with disabilities.

One of the main requirements of the ADA is for employers to make reasonable accommodations for the known disabilities of qualified individuals. The disability must be known; therefore, this requires the employee to notify the employer.

Once known, the employer has to make reasonable accommodations, which is defined as adjustments or modifications to the job that would allow the individual to perform essential work functions.

Employers are not obligated to make an accommodation if it gives rise to an undue hardship, which is defined as an accommodation requiring significant difficulty or expense.

Overall, the ADA requires most employers to provide for reasonable accommodations to allow qualified individuals with disabilities to perform essential work functions.

© 2014 Parsonage Vandenack Williams LLC

For more information, Contact Us

If I Start a Business, What Employment Laws Should I Be Aware Of?

A Video FAQ with M. Thomas Langan II.

If you start a business and hire employees, there can be several employment laws that you should be aware of. Generally speaking, employment laws are on a sliding scale approach. If you only have 1 or 2 employees, your company will generally be exempt from many employment laws; however, as  your company continues to grow and expand, it will start to become subject to more and more of these employment laws.

  • Employee Retirement Income Security Act. If your company offers employment benefit plans or health plans you could be subject to ERISA. ERISA governs these plans and makes sure that they are offered and implemented in a fair and financially sound manner.
  • Occupational Safety and Health Administration. OSHA governs workplace safety and applies to most businesses.
  • Americans with Disabilities Act. The ADA generally prohibits employers from discriminating against qualified employees or applicants with disabilities.
  • Family and Medical Leave Act.  FMLA  requires certain employers to provide for job protection or unpaid leave for employees facing certain medical- or military-related events.

There are many employment laws that could apply to your business, but knowing which ones your company is subject to is very important.

© 2014 Parsonage Vandenack Williams LLC

For more information, Contact Us