Before Congress passed the 2008 Amendments to the Americans With Disabilities Act (“ADA”), courts generally held temporary disabilities were not covered by the ADA. Thus, if an employee had a temporary condition such as a broken leg or acute bronchitis, employers after the 12 weeks of Family Medical Leave Act (“FMLA”) leave ended, often required employees to return to work or be terminated from their employment. In the first Court of Appeals decision to address this issue, Summers vs. Altarum Institute Corp., No. 13-1645 (4th Cir. January 23, 2014), the United States Court of Appeals For The Fourth Circuit (“Fourth Circuit”) held that after the 2008 Americans with Disabilities Act Amendments Act (“ADAAA”), the ADA now protect persons with temporary disabilities which are “severe.”
When the ADAAA was enacted in 2008, it had an odd reference to temporary disabilities. The ADAAA provided that an impairment which was “transitory and minor,” i.e., of “an actual or expected duration of six months or less,” would not be considered as a disability under the “regarded as” definition of a disability. 42 U.S.C. § 12102(3)(B). That is, if the employer thought a worker had an impairment which was temporary and regarded the person as temporarily disabled, that would not qualify the employee as being a person with a disability, and thus protected by the ADA.
However, that left open the much more common situation – what if the person actually had a temporary impairment, can a temporary impairment be an actual disability thus warranting ADA protection. Many hoped this glaring omission was just a legislative oversight. In the case of Summers vs. Altarum Institute Corp., No. 13-1645 (4th Cir. January 23, 2014), the Court of Appeals for the Fourth Circuit answered the question, ruling that a temporary and severe impairment does in fact qualify as a disability under the ADA, and thus persons with such temporary and severe impairments are protected by the ADA.
In reaching this conclusion, the Fourth Circuit faced a rather extreme fact pattern. An employee fell and fractured his left leg, tore the meniscus tendon in his left knee, fractured his right ankle, and ruptured a tendon in his right leg. The employee’s medical evidence was that he could not walk for six weeks, and would not be able to walk normally for seven months. A month and a half later, the employee was fired when he could not return to work and the customer where he had worked on site insisted on a replacement (presumably the employee did not have FMLA coverage). The trial court, relying on pre-ADAAA case law, held a temporary disability is not covered by the ADA.
On appeal, the Fourth Court noted the ADAAA stated that temporary conditions could not meet the “regarded as” definition of a disability. However, the Court also correctly noted the exclusion did not explicitly apply to the definition of an actual disability (Slip Opin. at 9 n.1). While one could argue this was a legislative oversight, since it makes no sense to exclude temporary conditions from the definition of a regarded as disability, only to include them as an actual disability, the Fourth Circuit never asked that question. Instead, the Fourth Court reasoned that when a provision is provided in one part of legislation, but not in another part of the same legislation, the inference is that the omission was intentional (Slip Opin. at 15-16).
The Fourth Circuit also noted that the EEOC regulations and appendix explicitly provide that temporary conditions can be an actual disability if the condition is “sufficiently severe.” 29 U.S.C. § 1630.2(j)(1)(ix) and 1630.2(j)(1)(ix) (app.). The EEOC, as an example, noted that a back impairment which limits lifting to 20 pounds for several months would be considered severe enough and thus a protected disability (Slip Opin. at 12).
The Fourth Circuit found the EEOC’s regulations to be consistent with Congressional intent and that they were reasonable, because the intent of the Act was to expand and liberalize the definition of a covered disability:
Abrogating Toyota [Motor Manufacturing, Kentucky Inc. v. Williams, 534 U.S. 184, 199 (2002)], the amended Act provides that the definition of disability “shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by [its] terms.” 42 U.S.C. § 12102 (4)(A). Further, Congress instructed that the term “substantially limits” be interpreted consistently with the liberalized purposes of the ADAAA. Id. § 12102(4)(B). And Congress directed the Equal Employment Opportunity Commission (“EEOC”) to revise its regulations defining the term “substantially limits” to render them consistent with the broadened scope of the statute. Pub. L. No. 110-325, § 2(b)(6).
Slip Opin. at 9.
Likewise, the Fourth Circuit had no problem concluding that a seven-month limitation on normal walking is “sufficiently severe” to come under the EEOC regulations. The Fourth Circuit also noted that accommodating temporary disabilities will not dramatically burden employers, since obviously, if the disability is temporary, the accommodation will also be temporary (Slip Opin. at 16).
It should be noted that the Fourth Circuit’s decision probably is doing a favor for employers. The reality is that early on, right after an injury or medical condition develops, employers often do not know if the condition will cause a permanent impairment. Thus, if the employer initially fails to provide a reasonable accommodation, the employer would face liability if it later turns out the employee does not make a full recovery and thus has a permanent disability. Indeed, one need only look at the employee in Summers to see this. While a fractured leg normally heals with no residual impairment, that is not always the case. Complications or poor healing can result in a limp or arthritis, and a torn meniscus often results in a permanent weakness in the knee. Let’s face it, not everyone recovers like football stars Adrian Peterson and RGIII.
Thus, when faced with an injured or sick employee who makes an ADA accommodation request, employers usually have to assume there might be a permanent impairment at the end of medical treatment, and thus wise employers never automatically reject accommodation requests. Now with the Summers decision, this practice is even more prudent, since even a temporary disability can warrant ADA protection.
One obvious question is, how severe must the temporary condition be to warrant coverage? Colds, the flu, minor bone fractures – probably not. However, any condition that last more than a couple of months may well warrant ADA protection.
Congress’ intent was for employers not to focus on whether a condition is, or is not, a disability, but to focus on reasonable accommodations which will allow the employee to continue to work. Now, more than ever, that is good advice for employers.
If you have any questions, please contact the author, a member of Seyfarth’s Absence Management and Accommodations team, or your Seyfarth attorney.