Recent ADA Cases Create Questions for Employers

The ADA’s definition of disability contains three parts. An individual with a disability is someone who:

  • Has a physical or mental impairment that substantially limits one or more major life activities;
  • Has a record or history of such physical or mental impairment; or
  • Is regarded as having an impairment

Historically, courts have upheld cases that view this definition broadly.

There is a growing exception. Several courts have ruled that a future disability is not covered. This line of reasoning was used to protect employers in a recent pair of decisions. In the one decision, Shell v. Burlington Northern Santa Fe Railway Co. (7th Cir. 2019), the Seventh Circuit ruled a railroad did not violate this law when it refused to hire an obese applicant because of the risk of possible health issues. In the second decision, Lowe v. STME, LLC. (11th Cir., 2019), the Eleventh Circuit favored the employer, and found it could fire a worker before a trip to Africa where she potentially could catch Ebola.

Employers should be cautious when following this precedent. The EEOC does not agree with the courts’ approach and may find a case to prosecute that will turn the tide. Moreover, how the ruling in these cases does or does not conflict with the definition could be confusing. If you don’t want your employer to be the test case in this area, be circumspect in following case law and call an attorney at Employers Council if you have questions about how current rulings compare with the facts at your workplace.

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