Reality Hits: The Temporarily Impaired can be “Disabled” under the ADA
When Congress passed amendments to the Americans with Disabilities Act in 2008 (“ADAAA”), it was reacting, in part, to a series of Supreme Court decisions. One of those decisions, Toyota Motors Manufacturing, Kentucky Inc. v. Williams (2002), adopted a strict construction of the term “disability,” and ruled that a “temporary impairment” could not qualify as a disability. Many lower courts applied Toyota Motors to mean that an impairment that did not last for more than 12 months did not qualify as a “disability.” In amending the ADA, Congress made clear it was overruling Toyota Motors and made it clear that the terms “disability” and “substantially limits” were to be interpreted broadly. Congress directed the EEOC to revise its regulations to render them consistent with the new broaden scope of the ADA.
In response, the EEOC adopted regulations that provided that an impairment lasting less than six months could constitute a disability if the impairment was “sufficiently severe.” 29 C.F.R. § 1630.2(j)(1)(ix). As part of its regulatory guidance, the EEOC observed that a person with bad back and a 20 pound lifting restriction that lasts for “several months” was sufficiently impaired to be considered “disabled” under the revised ADA. Since then, lower courts have wrestled with how to apply this new law.
The Fourth Circuit Court of Appeals became the first appellate court to take up the issue of when a “temporary impairment” will qualify as a “disability.” The Court ruled that the EEOC’s regulations were reasonable and courts should defer to the regulations in this area. As a result, the Court had little difficulty finding that an employee who fell and suffered serious injuries requiring multiple surgeries on both legs and who was temporarily limited in his ability to walk for six months was “disabled” under the ADA. As a result, the Court reversed and reinstated the lawsuit challenging his dismissal. Summers v. Altarum Institute Corp., ( Jan. 23, 2014).
The Summers decision leads to at least three practical consequences. First, employers must realize that temporary conditions which significantly impact ordinary life functions, like walking, sleeping, etc., are likely to be protected under the ADA as a disability, even though they are temporary in nature. The employer in Summers argued that this new temporary impairment rule under the ADAAA should only apply if the temporary impairment is the result of an underlying condition that is permanent in nature. The Court rejected this argument and found no basis for this type of distinction. As a result, any injury suffered on or off the job, which results in a significant but temporary impairment of two months or more, is likely to be found a disability.
The second lesson from Summers is that engaging in the interactive process with an employee who is temporarily impaired is now essential. An employer’s failure to be able to prove that it engaged in this process in good faith with a “disabled” employee makes it very difficult to defend a subsequent ADA claim. In Summers, within three weeks after the accident, the injured employee, who was on short-term disability leave, requested the opportunity to work from home and to gradually increase his hours of work until he could return on a full time basis. The company never responded to his request at all. Instead, six weeks after his injury, the employer simply informed Summers that the company was terminating his employment in order to place a new employee in his job who could work at the customer site, which was viewed as a requirement.
Third, Summers brings into sharp focus the intersection between workers’ compensation and federal law (ADA and FMLA). Employers should consider being more proactive in the resolution of worker compensation claims rather than simply allowing the insurance company to settle the “comp” claim. Any time a workers’ compensation claim is settled, consideration should also be given to resolving potential claims under the ADA and FMLA, especially when the employee will be leaving the employment of the company.
In closing, the days are gone when management can simply say that temporary impairments do not qualify for protection under the ADA. While not every broken leg or other temporary condition will qualify as a disability, if a 20 pound lifting restriction that lasts for two months can qualify, it will be difficult to successfully prove that many other temporary impairments that last for two months or more are not a disability. At this point, employers are better served to operate on an assumption that the ADA applies to most conditions and to be sure that HR and managers together engage in (and can document) the interactive process with the injured worker. The key for an employer in this situation is to show it engaged in a discussion and consideration of potential accommodations. A court is less likely to second guess a decision to deny a specific accommodation than a situation where no discussion ever occurred.
For additional assistance on matters involving the ADA and other employment issues, please contact David Paxton (540.983.9334; email@example.com) or the other members of the Employment Law Practice Group.
 Employers must also keep in mind that transferring a disabled employee to a vacant position for which they are “minimally qualified” is an accommodation that should be considered. The EEOC has aggressively taken the position that a transfer to a vacant position must be provided as an accommodation, even if the disabled employee is not the most qualified for the job. At least one federal appeals court has agreed. EEOC v. United Airlines, 693 F.3d 760 (7th Cir. 2012), cert. denied 133 S. Ct. 2734 (May 28, 2013).