Hepatitis Disability Discrimination Claim Dismissed Under the ADA’s “Business Necessity” Exception

In Lopez v. Hollisco Owners’ Corp., No. 14-CV-3738, 2015 WL 7748358 (E.D.N.Y. Nov. 30, 2015), the court granted defendants’ motion for summary judgment on plaintiff’s disability discrimination claim under the Americans with Disabilities Act (ADA) and the NYC Human Rights Law.

In sum, the court held that an employer may “condition an employee’s return to work, after he reports he has a dangerous disease, on production of a doctor’s note that he is fit for work.”

Plaintiff – a porter in a Queens co-op building – texted his supervisor that he felt like he might have Hepatitis. The property manager instructed plaintiff to leave the premises and obtain a doctor’s clearance before returning to work. Plaintiff, however, never produced a doctor’s note, because he believed he didn’t have to.

“The ADA permits an employer to require a medical examination and to make inquiries as to an employee’s medical condition where the examination or inquiry is shown to be job-related and consistent with business necessity.”

Applying the law, the court explained:

Defendants’ request that plaintiff provide a doctor’s note medically clearing him for work after plaintiff himself reported that he might have Hepatitis B or C was reasonable. Ensuring that employees at a residential building do not pose a health risk to residents is a business necessity for purposes of the ADA. The evidence demonstrates that plaintiff was not fired as a result of a perceived disability. Rather, he voluntarily abandoned his job, choosing not to provide the requested doctor’s note because he felt he did not have to do so. …

The record demonstrates that plaintiff’s firing was not due to his perceived Hepatitis status. He failed to return to work with a doctor’s note. Plaintiff chose not to provide the requested doctor’s note because, he testified, he felt that he did not have to. By deciding he did not have to provide the requested doctor’s note, plaintiff effectively abandoned his job. An employee’s failure to provide medical clearance to return to work is a legitimate, non-discriminatory reason for an adverse job action. …

Plaintiff worked as a porter at a residential building. He was continuously in contact not only with the other service employees at the building, but also with residents, including elderly individuals and young children. He testified that his position required him to perform a host of maintenance activities around the co-op. Plaintiff’s job also often resulted in him suffering cuts and bruises. He might enter residents’ apartments at some point during the course of his day.

In light of the character of plaintiff s job, it was reasonable for his employer to ensure that he was capable of performing his work without any risk that he might infect others. Defendants, who are not doctors, were not required to know the specific risks of the illness plaintiff reported. Defendants’ request that plaintiff leave the premises and obtain a doctor’s note clearing him for work, and subsequently terminating his employment when he failed to return to work, was based on a legitimate, non-discriminatory reason. With respect to plaintiff’s ADA claims, defendants’ actions fall within the business necessity exception.

There is no evidence that any other employee would be, or was, treated differently. There is no evidence of pretext. Summary judgment in favor of defendants on these discrimination claims is warranted.

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