Emerging Trend: ADA Does Not Cover Potential Future Disabilities

Heeding the adage "no one knows what the future may hold," the Seventh, Eighth and Eleventh Circuits have uniformly refused to extend protections of the Americans with Disabilities Act (ADA) to employees with a perceived risk of a potential impairment.

In each case, an employer either declined to hire an applicant or terminated an employee based on the perceived possibility that the individual – who otherwise did not have an actual disability – would later develop a medical condition that could impair their capacity to perform essential job functions or otherwise pose a safety concern. In a September 2019 case before the Seventh Circuit and in an April 2016 case out of the Eighth Circuit, both involving the same employer, a transportation company declined to hire a job applicant with a BMI of over 40 (therefore classified as obese) for a safety sensitive position because of the perceived risk that the applicant could develop certain medical conditions in the future