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ADA Update: Disability Now Includes Some Temporary Impairments

Posted | by William Joseph Austin, Jr. William Joseph Austin, Jr.

We muddle through the Americans with Disabilities Act ("ADA"). It is certainly not a law that can be applied with fine precision mainly because it contains a cascade of fraught words and phrases, beginning with the elusively defined "disability." Like the limbo, one abiding question is, "How low can you go?" When it comes to setting the bar for what qualifies as a "disability," the trajectory points lower and lower.  

According to the United States Court of Appeals for the Fourth Circuit, "a sufficiently severe temporary impairment may constitute a disability" now under the ADA Amendments Act of 2008. Summers v. Altarum Institute Corp., Slip op. at 3 (decided January 23, 2014). The plaintiff in that case, Mr. Summers, sustained a particularly nasty fall in the course of his employment. It resulted in two broken legs. Surgery was required to both, and the convalescence imposed by the treating physician forbade the gentleman from putting any weight on his left leg for six weeks. Slip op. at 4. He would not be able to walk normally for seven months. Id. Although the plaintiff was hospitalized and then went on short term disability, his inquiries to the company human resources representative and to his supervisor were all about working remotely part‑time and then increasing his hours gradually until he was full‑time again after a few weeks.  

The accident occurred on October 17, 2011. Despite Mr. Summers' expressed intent to return to work, the employer terminated him effective December 1, 2011. Slip op. at 5. He filed suit under the ADA, but his complaint was dismissed by the U.S. District Judge. 

The Fourth Circuit reversed. The court's unanimous opinion recapped the pertinent changes wrought by the ADA Amendments Act of 2008 ("ADAAA"), including abrogation of the Supreme Court's decision in Toyota Motor Mfg. v. Williams, 534 U.S. 184, 199 (2002), which had adopted a strict construction of the phrase "disability" and suggested that a temporary impairment could not qualify. The opinion then discussed the regulations promulgated by the Equal Employment Opportunity Commission interpreting the ADAAA, including 29 C.F.R. § 1630.2(j)(1)(ix) (2013), which expressly provides that "effects of an impairment lasting or expected to last fewer than six months can be substantially limiting," for purposes of proving an actual disability. Quoting the appendix to Part 1630 of the regulations, the Fourth Circuit held that such short-lived impairments may be covered "if sufficiently severe." Slip op. at 9-10, quoting 29 C.F.R. § 1630.2(j)(1)(ix)(app). 

In the case at hand, Mr. Summers was substantially limited in his ability to walk, a major life activity recognized under the ADAAA, and the limitation was expected to last at least seven months. According to the court it was "sufficiently severe" to allow him to invoke the protection of the ADA. Slip op. at 17-18. Conventional wisdom until the Summers opinion held that the garden variety worker's compensation injury would not justify ADA protection when there was disability of several weeks or even months, convalescence, and return to work at the regular job. Summers disabuses us of that supposition as even within that scenario the employee now may invoke ADA protection if the impairment in the meantime is "sufficiently severe."  

By quoting the regulations to say that "impairments that last only for a short period of time are typically not covered," slip op. at 10 (quoting 29 C.F.R. § 1620.2(j) (1) (ix)), the Fourth Circuit signals that there will be short term disability cases not covered by the ADA. However, the line of demarcation is unclear, as the most the court would say was that Mr. Summers' disability fell within the protection of the ADAAA, and that "an impairment is not categorically excluded from being a disability simply because it is temporary." Slip op. at 18. In other words, disabilities that are temporary and not as bad as Mr. Summers' may not be so protected. 

A helpful heuristic device in ADA cases is to ask the question, is the charging party seeking gainful employment, or is he trying to keep a position held open. The courts seem to have more sympathy for the active job-seeker with a disability than for the individual who is trying to secure, say, an extra helping of leave as an accommodation. 

In Mr. Summers' case, while the gentleman was still in the hospital he inquired about working from home and accommodations that would allow him to return to work. It was the company's human resources representative who suggested that he "take short-term disability and focus on getting well again." Slip op. at 4-5. Mr. Summers followed the advice of the company representative but was promptly fired. The equities definitely tipped in his favor, but now employers have a new ADA phrase to contend with, the "sufficiently severe temporary impairment."

This post is not intended to give, and should not be relied upon for, legal advice in any particular circumstance or fact situation. No action should be taken in reliance upon the information contained in this post without obtaining the advice of an attorney. If you have questions concerning this post, please contact William Joseph Austin, Jr. at wja@wardandsmith.com.

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