Temporary Impairments Can Be Covered By ADA

It has long been thought that the Americans With Disabilities Act (ADA) provides protection only to employees with permanent injuries. In a significant private sector case, the federal Fourth Circuit Court of Appeals upended that paradigm, and found that the ADA could apply also to temporary impairments.

The case involved Carl Summers, a senior analyst for the Altarum Institute, a government contractor with an office in Alexandria, Virginia. Summers’s job required him to travel to the Maryland offices of Altarum’s client, the Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury.

On October 17, 2011, Summers fell and injured himself while exiting a commuter train on his way to Defense Centers. With a heavy bag slung over his shoulder, he lost his footing and struck both knees against the train platform. Summers fractured his left leg and tore the meniscus tendon in his left knee. He also fractured his right ankle and ruptured the quadriceps-patellar tendon in his right leg. Repairing the left-leg fracture required surgery to fit a metal plate, screws, and bone into his tibia. Treating Summers’s ruptured right quadriceps required another surgery to drill a hole in the patella and refasten his tendons to the knee.

Doctors forbade Summers 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, bed rest, pain medication, and physical therapy, Summers would likely not have been able to walk for more than a year after the accident.

Altarum’s insurance provider granted Summers short-term disability benefits, but Altarum never followed up on Summers’s request to discuss how he might successfully return to work. The company did not suggest any alternative reasonable accommodation or engage in any interactive process with Summers. Instead, on November 30, Altarum simply informed Summers that Altarum was terminating him effective December 1, 2011, in order to place another analyst in his role.

Summers sued under the ADA, claiming that Altarum discriminated against him by wrongfully discharging him on account of his disability. That set the stage for the Court’s decision on whether the ADA provided any protection to temporary disabilities such as that suffered by Summers.

The Court started with a bit of the tortured history of the ADA: “In September 2008, Congress broadened the definition of ‘disability’ by enacting the ADA Amendments Act. In response to a series of Supreme Court decisions that Congress believed improperly restricted the scope of the ADA, it passed legislation with the stated purpose of ‘reinstating a broad scope of protection to be available under the ADA.’ Particularly relevant to this case, Congress sought to override Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), in which the Supreme Court had adopted a strict construction of the term ‘disability’ and suggested that a temporary impairment could not qualify as a disability under the Act. Congress believed that Toyota set an ‘inappropriately high level of limitation necessary to obtain coverage under the ADA.’

“Abrogating Toyota, 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.’ In response to direction from Congress, the EEOC adopted regulations defining the term ‘substantially limits’ to render them consistent with the broadened scope of the statute. In particular, the EEOC regulations also expressly provide 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.

“Despite the sweeping language of the amended Act and the clear regulations adopted by the EEOC, Altarum maintains that a temporary impairment cannot constitute a disability. In doing so, Altarum principally relies on pre-ADAAA cases that, as we have explained, the amended Act abrogated.

“Altarum contends that the EEOC regulations defining a disability to include short-term impairments do not warrant deference. Although Altarum contends that Congress’s intent to withhold ADA coverage from temporarily impaired employees is ‘evident,’ no such intent seems evident to us. To be sure, the amended Act does preserve, without alteration, the requirement that an impairment be ‘substantial’ to qualify as a disability. But Congress enacted the ADAAA to correct what it perceived as the Supreme Court’s overly restrictive definition of this very term. And Congress expressly directed courts to construe the amended statute as broadly as possible. Moreover, while the ADAAA imposes a six-month requirement with respect to ‘regarded-as’ disabilities, it imposes no such durational requirement for ‘actual’ disabilities, thus suggesting that no such requirement was intended. At best, the statute is ambiguous with respect to whether temporary impairments may now qualify as disabilities.

“We must determine whether the EEOC’s interpretation is reasonable. We conclude that it is. The EEOC’s decision to define disability to include severe temporary impairments entirely accords with the purpose of the amended Act. The stated goal of the ADAAA is to expand the scope of protection available under the Act as broadly as the text permits. The EEOC’s interpretation – that the ADAAA may encompass temporary disabilities – advances this goal. Moreover, extending coverage to temporarily impaired employees produces consequences less dramatic than Altarum seems to envision. Prohibiting employers from discriminating against temporarily disabled employees will burden employers only as long as the disability endures. Temporary disabilities require only temporary accommodations.”

Summers v. Altarum Institute, Corp., 740 F.3d 325 (4th Cir. 2014).

The following comments are posted by Robin Shea, partner in the employment law firm of Constangy, Brooks & Smith, on their blog, Employment & Labor Insider.

What does the Summers decision teach employers about the ADAAA?

1. The standard for “disability” is now different – and much more lenient – than it was before the ADAAA. Congress intended to make that change and had the right to do it, and the EEOC’s regulations interpreting the ADAAA are consistent with congressional intent.

2. The ADAAA provides that “mitigating measures” – including “bed rest, pain medication, and physical therapy” – are not to be considered in determining whether someone has a disability. The employee’s condition must be viewed in its “unmitigated” state. In other words, in assessing whether Mr. Summers had a “disability,” the Court had to look at the effect of his injuries as if he had not received any treatment or therapy. (The Court did not decide whether “surgery” falls into the same category.)

3. Although the “regarded as” provisions of the ADAAA talk about a six-month minimum duration, the same does not apply to an “actual” disability. For an actual disability, only “transitory and minor” conditions are unprotected. A “sufficiently severe” injury can be a disability even if its duration is less than six months.

4. Even if Mr. Summers could have continued to work using a wheelchair, that does not affect the analysis of whether he was “disabled.” (Of course, his ability to work would be very relevant to a reasonable accommodation analysis, but not to whether he had a disability in the first place.)

5. The fact that Mr. Summers’s impairment was caused by an injury (as opposed to an illness) was irrelevant to his status as a person with a disability within the meaning of the ADA. This was true both before and after the ADAAA.

According to the Fourth Circuit, Altarum and the District Court relied on cases based on claims that arose before the ADAAA took effect. I have cautioned employers in the past about making this mistake.

The overarching lesson from Summers is that, post-ADAAA, employers must err on the side of treating the individual as being “disabled” and having the protection of the ADA. The days when an employer can defeat an ADA claim simply by contending that the plaintiff does not have a “disability” are over. Employers should spend their efforts making sure that they have effective protocols in place for reasonable accommodation, medical leaves of absence, and termination of employees who are unable to perform their job duties for arguably medical reasons. to be sure they follow those protocols, and with the help of their counsel if necessary.