On Equal Footing: Fourth Circuit Disables Temporary vs. Permanent Distinction Under the ADA
February 18, 2014
Last month, the United States Court of Appeals for the Fourth Circuit held that a “sufficiently severe” temporary impairment may constitute a disability under the American Disabilities Act (“ADA”). Summers v. Altarum Inst., Corp., 740 F.3d 325 (4th Cir. 2014). This is significant because employers will need to review and update their policies and procedures, especially where they are assessing the implications of employees who suffer injuries of a non-permanent nature. The reflexive denial of accommodation requests because the employee’s disabling condition is temporary is a thing of the past.
To put the Summers decision in context, remember that Congress implemented the American with Disabilities Act Amendments Act (“ADAAA”), substantially broadening the definition of “disability” to be “in favor of broad coverage of individuals[,]” 42 U.S.C. § 12102(4)(A). Essentially, Congress dictated that the ADA should be interpreted in its most liberal sense and that all terms should be construed towards covering impaired employees. Following suit, the Equal Employment Opportunity Commission (“EEOC”) revised its regulations to explain that “[t]he term ‘substantially limits’ shall be construed broadly in favor of expansive coverage” and that the term is “not meant to be a demanding standard.” 29 C.F.R.§ 1630.2(j)(1)(i). It is the EEOC’s stance that an “impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of determining whether an injury qualifies as a “disability” under the ADA. 29 C.F.R.§§ 1630.2(j)(1)(ix). What this means is that in addition to accommodating employees who suffer from permanent impairments, employers must now carefully consider whether an employee’s temporary impairment substantially limits the employee’s “major life activities.”
In Summers, the employee injured himself on his way to work when he fell from a commuter train. He sustained multiple fractures in his legs and ankles that would require significant recuperative procedures and that prevented him from walking normally for seven months. Due to these serious, but temporary, injuries, the employee was unable to work. Approximately five months after his accident, his employer discharged him because it needed to have someone actively working in that position.
The discharged employee brought suit under the ADA, arguing that his employer discriminated against him on the basis of his temporary injuries. The district court disagreed and ruled that a “temporary” injury is not covered under the ADA. On appeal, the Fourth Circuit revived his claims. The Court explained that under recent “liberalizing” amendments to the ADA, a temporary physical impairment which “substantially limits” an individual’s “major life activities” (which includes an individual’s ability to walk), may fall within the ADA’s scope. See 42 U.S.C. § 12102(2)(A). Key to the Court’s decision was the EEOC’s regulation expressly stating that temporary impairments may rise to the level of a disability and that “duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity.” Summers, 740 F.3d at 329 (quoting 29 C.F.R. §§ 1630.2(j)(1)(ix)(app.)). Because Mr. Summers was unable to walk for six weeks, he was disabled, and, according to the Court, “an impairment is not categorically excluded from being a disability simply because it is temporary.” Id. at 333. The Court also noted that an employer is not overly burdened by being required to accommodate an individual with a temporary disability because if the disability is temporary, then the accommodation will be temporary, too.
This opinion appears to be in accord with the EEOC’s position on temporary disabilities. Just prior to releasing its regulations, the EEOC listed a non-exhaustive category of temporary impairments that would not usually give rise to a disability claim. These included the common cold, influenza, a sprained joint, appendicitis, and a fracture expected to completely heal. The EEOC deleted this list from the published regulations for fear that it would cause confusion and appear too limiting. While not definitive, this list does provide insight into the types of ailments that likely fall short of being a “temporary disability.” Like the EEOC’s list, Summers does not give a bright-line rule for when a temporary injury rises to the level of a disability subject to the ADA, but the Fourth Circuit’s recent opinion does makes clear that if an employee requests a disability accommodation, his/her employer should be proactive and make an individualized assessment based on the severity of the employee’s injury and anticipated recovery time.