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The Labor & Employment Report

Temporary Conditions Can Be Disabilities

Posted in Employment Discrimination, Laws & Regulations, Reasonable Accommodation

In a happier, pre-ADAAA (Americans with Disabilities Act Amendments Act) time, I could blithely advise clients that any medical condition that lasted less that 6 months was only temporary, and therefore was not a covered disability under the ADA.  Upon passage of the ADAAA, however, this elegantly simple, bright-line rule no longer applies.  Instead, we are faced with chaos and uncertainty, as evidenced in  the case of Summers v. Altarum Institutethe first appellate court decision to address the expanded definition of “disability” under the ADAAA

An employee of the Institute had a serious accident, injuring both legs and requiring several surgeries.  He was unable to walk for seven months.  After his short-term disability benefits expired, he asked if he could telecommute on a part-time basis, with a plan to work back up to full-time.  The Institute did not respond to his suggestion or engage in any interactive discussions about what other accommodations might be possible, as required by the ADAAA.  Instead, it terminated and replaced him. 

Unsurprisingly, the employee then filed suit, claiming, among other things, that the Institute discriminated against him by wrongfully discharging him on the basis of his disability.  The Institute argued that the employee’s condition, which lasted less than a year, was only a temporary impairment that shouldn’t be considered a disability under the ADAAA.  And if the employee wasn’t disabled, he wouldn’t be entitled to the protections of the Act.  The federal district court agreed with the employer and dismissed the employee’s disability discrimination claim.

On appeal, the U.S. Court of Appeals for the 4th Circuit found that the district court had applied the wrong, pre-ADAAA, standard for assessing disability.  Noting that the ADAAA was intended to broaden the scope of the law (and has it ever!), the 4th Circuit looked to the Equal Employment Opportunity Commission’s regulations, which state, “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of establishing a covered disability.  In addition, the EEOC stated in the appendix to these regulations that, although “[i]mpairments that last only for a short period of time are typically not covered,” they may be covered, “if sufficiently severe.”  (What is sufficiently severe?!!)  An example of such a disability given by the EEOC is a back impairment resulting in a 20-lb lifting restriction lasting only for “several months.”  (What does “several” mean? Various dictionaries say “more than two or three, but not many.” Huh.)  In light of this guidance by the EEOC, the 4th Circuit determined that the employee’s seven-month (which is certainly more than “several” months) condition did, in fact, constitute a disability.

What does this mean for employers?  They should be wary of dismissing a temporary condition as not being a disability.  Really, it is safer to assume that the condition is a disability.  As one of our clients says, “ADAAA stands for ‘Assume Disability, Always Attempt Accommodation!’”  Love it!