What rights do former employees have under the ADA? Well, it depends.

***ducks tomato***

I’ll give you an example.

Let’s say a firefighter develops Parkinson’s Disease. Eventually, her disease leaves her incapable of performing the essential functions of her job, and she takes disability retirement at age 48.

The employer has a policy allowing former employees, like the employee here, to receive free health insurance until age 65. However, after the employee retires, the employer changes its benefits plan in 2003, and, you guessed it, the change impacts the post-employment health benefits. Specifically, disability retirees such as the employee can only receive the health insurance subsidy for twenty-four months after retiring. Thus, the employee will be responsible for her health insurance at age 50.

So, she sues, claiming a violation of the Americans with Disabilities Act for discrimination in post-employment distribution of fringe benefits. But does the ADA cover the former employee?

The Eleventh Circuit Court of Appeals concluded that it does NOT.

Title I of the ADA, as originally enacted, made it unlawful to “discriminate against a qualified individual with a disability because of the disability of such individual in regard to . . . employee compensation, . . . and other terms, conditions, and privileges of employment.” The statute defined a “qualified individual with a disability” as someone “who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” (court’s emphasis)

In other words, the original statute only covered current employees or those who seek to return to work.

When Congress passed the Americans with Disabilities Act Amendments Act (ADAAA), the definition of “qualified individual” did not change materially. Presently, it’s someone who, “with or without reasonable accommodation,” is able “to perform the essential functions of the employment position that such individual holds or desires.” (my emphasis)

Therefore, because the disabled firefighter neither holds nor desires an employment position with the employer, the ADA does not cover her claim for post-employment benefits.

But, remember, I said that the answer to this question depends. Specifically, your mileage will vary based on where a case like this gets litigated. The  Sixth, Seventh, and Ninth Circuits agree with the Eleventh Circuit. The Second and Third Circuits (where I primarily practice) do not.

Multistate employers rejoice!

***ducks tomato***