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The Employer Handbook Blog
99.9% of Germs Eliminated. Also Her ADA Claims.
Keeping disinfectant in the office during the pandemic was understandable. Following coworkers around and spraying it on their clothes and sometimes in their mouths was not.
TL;DR: A federal appeals court upheld summary judgment for an employer on disability discrimination and retaliation claims after an employee was fired for directing disinfectant at coworkers. Other employees used disinfectant without targeting colleagues, and her grievance disputed the investigation without opposing disability discrimination.
Disinfecting surfaces was fine. Spraying coworkers crossed the line.
The employee had stage-four chronic kidney failure, chronic obstructive pulmonary disease, and congestive heart failure. During the pandemic, she wore a mask, wiped down surfaces, and used Lysol to protect her health. After her employer fired her for spraying coworkers, a trial court granted summary judgment for the employer on her disability discrimination and retaliation claims. The Eleventh Circuit affirmed.
The employer conceded that her medical conditions qualified as disabilities, but two coworkers complained that she followed them around with disinfectant and sprayed it on them, getting it on their clothes and sometimes in their mouths. HR investigated, interviewed the employee, and obtained corroboration from a witness. The HR director recommended a written reprimand.
The employee filed a grievance disputing the investigation, denied spraying her coworkers directly, and explained that she used Lysol because her medical conditions made her especially vulnerable. The final decisionmaker met with her, reviewed the investigation and the applicable harassment policy, and concluded that termination was warranted.
Other employees used Lysol, but none sprayed coworkers.
The plaintiff argued that other workers used Lysol without being fired. But there was no evidence that any of those employees sprayed coworkers. The employer did not deny that she had serious health conditions or object to employees using disinfectant; its stated reason for termination concerned the specific conduct described in the investigation.
An employee who wipes down a desk and an employee accused of spraying coworkers are not similarly situated merely because both use the same product. The distinction between ordinary disinfectant use and directing it at coworkers defeated the discrimination claim.
Disputing an investigation did not amount to opposing discrimination.
The plaintiff also argued that her grievance made her termination retaliatory, but filing a grievance does not automatically qualify as protected activity under the ADA. The question was whether her grievance opposed conduct she reasonably believed amounted to unlawful disability discrimination. Although it challenged the investigation, disputed the accusation that she sprayed coworkers, and explained her medical conditions, it did not allege that the employer treated her differently because of her disabilities or otherwise oppose disability discrimination.
Without protected opposition, the retaliation claim failed. Employers can reduce similar disputes by separating disability-related health precautions from conduct affecting coworkers and examining what an internal complaint actually communicates. The investigation and disciplinary record should explain those distinctions before anyone decides how to respond.
Three lessons when disability-related conduct affects coworkers
A disability-related explanation does not erase the underlying conduct.
An employee may have a legitimate reason to protect her health while still violating a workplace rule through the way she does it. Identify the specific conduct affecting coworkers and evaluate that conduct separately from the employee’s medical condition.
An investigation is stronger when it distinguishes ordinary precautions from targeted behavior.
The employer could explain why other employees who used disinfectant were treated differently: nobody else was accused of spraying coworkers. Preserve witness accounts and identify meaningful differences before comparing disciplinary outcomes.
A grievance is not automatically a complaint about disability discrimination.
Here, the employee disputed the investigation and invoked her health conditions without alleging that the employer treated her unlawfully because of them. HR should still review the substance of every complaint carefully, because an employee does not need legal terminology to communicate a disability-related concern.
Protecting yourself from a virus is reasonable. Treating coworkers like high-touch surfaces is harder to defend.