In the first and second editions of my book, understanding the ADA, I cited to the case of Burch v. Coca-Cola Company, 119 F.3d 305 (5th Cir. 1997), for the proposition that temporary disabilities are not protected by the ADA. However, I did say as a preventive manner, it made sense to treat temporary disabilities as you would a permanent disability since what was a temporary disability was uncertain. By the time of the fourth edition, which has just been published by the American Bar Association in the last few months, things were quite a bit different. I still say that a temporary disability is not covered under the Americans with Disabilities Act as amended. However, I go on to say that just how long a temporary disability has to go on to no longer be a temporary disability for purposes of the ADA is far from clear. The EEOC in their final regulations implementing the amendment to the Americans with Disabilities Act does say that it is possible for a disability to arise even if it lasts, or is expected to last, for less than six months. Their view is that the reference to disabilities that are transitory and minor (a natural or expected duration of six months or less), that appears in the amendments to the ADA (ADAAA) is restricted to claims alleging that the person was discriminated against by an employer who regarded him or her as having a disability. The Department of Justice in their recently proposed regulations implementing the ADAAA adopts this view as well.
So, what does the case law say?
Many people have commented on the decision of the Fourth Circuit of January 23, 2014, Summers v. Altarum Institute, Corporation,, _ F.3d_, 2014 WL 243425, which found that temporary disabilities of a certain severity can be protected under the ADAAA, including two people whose blogs are in my blogroll (Jon Hyman and Robin Shea). Since this decision is a huge decision in ADA jurisprudence, I thought I would add my own comments. As has been my practice lately, this blog entry is divided up into different sections: facts, issue, the court’s reasoning, and takeaways. The reader is free to zero in on any or all of the sections.
In this case, the plaintiff, Karl Summers, was a senior analyst for a government contractor, where he conducted statistical research, wrote reports, and made presentations. The defendant did have a policy of authorizing employees to work remotely if the client approved. The particular client that he was working for preferred people to work on site during business hours, but did permit people to work remotely from home when putting in extra time on a project. On October 17, 2011, the plaintiff fell and injured himself while exiting a commuter train on his way to work. He had a heavy bag slung over his shoulder and lost his footing and struck both of his knees against the train platform. He was taken to the hospital where doctors determined that he sustained serious injuries to both legs. In particular, he had fractured his left leg and tore the meniscus tendon in his left knee. He also had fractured his right ankle and ruptured the quadricep-patellar tendon in his right leg. Repairing the left leg fracture necessitated surgery to fit a metal plate, screws, and bone into his tibia. Repairing his ruptured right quadriceps required yet another surgery to drill a hole in the patella and re-fasten his tendons to the knee. His doctors forbade the plaintiff from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for seven months at the earliest. Without surgery, bedrest, pain medication, and physical therapy, the plaintiff alleged that he would likely not have been able to walk for more than a year after the accident. While hospitalized, the plaintiff contacted an HR representative of the defendant about obtaining short-term disability and working from home as he recovered. That representative agreed to discuss accommodations that would allow Summers to return to work but suggested that he take short-term disability and focus on getting well again. The plaintiff went ahead and sent emails to his supervisors at his company and at the company that his company was contracting for about how to return to work, even suggested a plan in which he would take short-term disability for a few weeks and then start working remotely part-time and gradually increasing until he was working full-time again. The defendant granted him short-term disability benefits but never followed up on the plaintiff’s request to discuss how he might successfully return to work. Neither did the defendant suggest any alternative reasonable accommodations or even engage in the interactive process with Summers, the plaintiff. For that matter, they didn’t tell the plaintiff that they had any problem with the plan for a graduated return to work, rather on November 30, the defendant simply terminated the plaintiff’s employment in order to place another analyst in his role at the company he was contracted out to. The district court dismissed his claim and the plaintiff appealed to the Fourth Circuit.
Can a person with a sufficiently severe temporary impairment have a disability under the Americans with Disabilities Act as amended (ADAAA)?
The Court’s Reasoning finding that a temporary impairment can constitute a disability under the ADA as amended:
1. The court refers to the definition of a disability under the ADA. It then notes that the ADAAA broaden the definition of disability by explicitly stating that the amendments were meant to override Toyota Motor Manufacturing, Kentucky, Inc. v. Williams 534 U.S. 184 (2002), which adopted a strict construction of what a disability is under the ADA and also suggested that a temporary impairment does not qualify as a disability under the ADA (as mentioned above, other cases had held prior to that that a temporary disability was not protected under the ADA). In particular, the ADAAA specifically stated that Congress believed that Toyota Motor set the standard too high as to what constituted a disability for purposes of coverage under the ADA and goes on to say that the definition of disability has to be construed in favor of broad coverage of individuals under the ADA to the maximum extent permitted.
2. The ADAAA also goes on to say that the term substantially limits has to be interpreted consistently with the liberalized purposes of the amendment to the ADA and instructed the EEOC to effectuate that. The regulations issued by the EEOC implementing the ADAAA said that substantially limits has to be construed broadly in favor of expansive coverage and that the term is not a demanding standard (the DOJ in their proposed regulations implementing the ADAAA takes the same position). The final EEOC regulations (for that matter, the DOJ proposed regulations as well), says that an impairment lasting or is expected to last fewer than six months can be substantially limiting for purposes of proving an actual disability if sufficiently severe, which the plaintiff’s temporary impairment certainly was. After all, the plaintiff was left unable for seven months to walk. Further, without surgery, pain medication, and physical therapy, it would have been far longer.
3. Prior case law of the Fourth Circuit has never suggested that the ADAAA excluded temporary impairments from the definition of disability.
4. Another factor in the plaintiff’s favor that a temporary disability of sufficient severity is protected under the ADAAA, is that the ADAAA as well as the final regulations implementing that act, requires that a disability has to be considered without regard to mitigating measures such as medication, mobility devices, and physical therapy.
5. Interestingly enough, the plaintiff chose not to challenge the dismissal of his failure to accommodate claim. Nevertheless, the court addressed the issue because the issue of whether the plaintiff was otherwise qualified was likely to arise on remand of the plaintiff’s wrongful discharge claim. The court notes that an employee’s accommodation request, even an unreasonable one, typically triggers an employer’s duty to engage in the interactive process to determine a reasonable accommodation in collaboration with the employee.
A few things of note here. First, the court mentioned that even an unreasonable request for reasonable accommodation triggers the interactive process. Therefore, employers do not want to dismiss an accommodation request, however unreasonable it might be, once it is made. Instead, they need to take that as an initial offer. Second, the Fourth Circuit appears to be one of those circuits where there is a separate cause of action for failing to engage in an interactive process. Finally, it would seem on remand, that the defense is in big trouble here because they did not engage in the interactive process with the plaintiff, did not suggest any alternative reasonable accommodations, did not even tell the plaintiff that they had any problem with the plan for graduated return to work before terminating him.
6. While the ADAAA does impose a six month requirement with respect to regarding someone as having a disability, there is no durational requirement for actual disabilities. Accordingly, that suggested no such requirement was intended and not having such a requirement was consistent with legislative intent.
7. Also, the final EEOC regulations were a reasonable interpretation of the ADAAA. In particular, defining disability to include severe temporary impairments is consistent with purposes of the amendment to the ADA since the stated goal of the amendments was to expand the scope of protection available under the ADA as broadly as the text of the ADA permitted. Encompassing temporary disabilities advances that goal. Further, prohibiting employers from discrimination against persons with temporary disability is a burden on the employer for only as long as the temporary disability lasts. That is, temporary disabilities require only temporary accommodations.
8. In light of paragraph 6 and paragraph 7 above, the EEOC’s final regulations implementing the ADAAA were entitled to deference per Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
9. How a person suffers a disability is irrelevant to the analysis of whether a person has a disability under the ADAAA. Further, nothing in the EEOC regulations would suggest that an injury cannot be an impairment and in any event, would most certainly include broken bones and torn tendons, which would substantially limits the major life activity of walking.
1. The Department of Justice proposed regulations implementing the ADAAA, which I discussed last week and which echo the EEOC final regulations with respect to temporary disabilities, would also likely, in light of this decision, be entitled to Chevron deference.
2. How a person becomes a person with a disability under the ADA is completely irrelevant to whether the person has a disability. The only question is whether a person meets one of the definitions of having a disability under the ADA as amended.
3. A request for a reasonable accommodation, however unreasonable that request might be, triggers the interactive process.
4. There seem to be a trend developing that failure to engage in the interactive process is a separate cause of action.
5. A temporary disability of sufficient severity can be protected under the ADA’s actual disability prong.
6. I have said this before, but in light of this decision, it becomes even more imperative for a plaintiff to allege actual disability if they are also alleging regarded as having a disability in their complaint, and especially so if the disability is a temporary one.
6. So what is an employer to do? Good question. It is absolutely true that an impairment that is both transitory and minor lasting less than six months is not protected if a person is alleging that they were regarded as having a disability. That said, as a preventive measure, the employer should strongly consider treating all disabilities, temporary or otherwise, as they would a permanent disability if that disability satisfies the actual disability prong of the ADA. Second, it has to be remembered that a person with a disability also needs to be qualified and so that needs to be factored in as well. Finally, another way/approach is to say that a disability that is transitory AND minor is not protected by the ADA as amended providing the term “minor,” refers to an individual that is not substantially limited in a major life activity as defined by the ADAAA, regardless of how long the impairment is expected to last. The only difference between the two approaches is one of terminology and not of substance since under this approach, “minor,” is being narrowly defined as to whether a person is substantially limited in a major life activity as defined by the amendments to the ADA.