In late January, the U.S. Court of Appeals for the Fourth Circuit held in Summers v. Altarum Institute Corp., No. 13-1645 (4th Cir. Jan. 23, 2014), that "a sufficiently severe temporary impairment may constitute a disability." This opinion is the first published federal appellate court opinion to apply the expanded definition of disability contained in the Americans with Disabilities Act Amendments Act of 2008 (ADAAA).
The employee worked at the site of his employer's client as an analyst conducting research, writing reports, and making presentations. The employer allowed employees to work remotely if the client approved, but this client generally preferred to have contractors work on site. In October 2011, the employee injured himself while exiting a commuter train on his way to work. The serious injuries to the bones and tendons in his legs required the employee to undergo two surgeries. The employee's doctors prohibited him from putting any weight on his left leg for six weeks and estimated that it would be at least seven months before he could walk normally again.
While he was hospitalized, the employee contacted his employer about obtaining short-term disability benefits and working from home during his recovery. The employee suggested in emails to both his employer and the client that he take short-term disability for a few weeks, then work part-time remotely, and eventually work full-time remotely. The employee received short-term disability benefits, but never got any response to his requests to discuss returning to work. While the employer did not expressly reject the employee's proposed return-to-work plan, it also did not suggest any alternative reasonable accommodation or otherwise engage in any interactive process with the employee. In November 2011, the employer terminated the employee's employment.
The employee filed suit, alleging that his employer discriminated against him by terminating his employment because of his disability and by failing to accommodate his disability. The trial court dismissed both claims on a motion to dismiss. First, reasoning that a temporary condition lasting one year or less did not qualify as a disability, the court dismissed the employee's termination claim for failure to allege a disability. Second, determining that the employee's proposal to work from home temporarily was unreasonable, the court dismissed the failure-to-accommodate claim for not alleging that a reasonable accommodation request was made.
Appellate Court Analysis
The employee appealed the dismissal of his termination claim. The Fourth Circuit began its analysis by examining the ADAAA's purpose and implementing regulations. First, the court observed that Congress enacted the ADAAA to abrogate a series of U.S. Supreme Court decisions that it viewed as too restrictive in their interpretation of the ADA. Specifically, the court noted that Congress intended to override a decision suggesting that a temporary impairment could not qualify as a disability. Second, the court looked to the EEOC's ADAAA implementing regulations which provide that "effects of an impairment lasting or expected to last fewer than six months can be substantially limiting" for purposes of establishing a disability.1 Third, the court noted that the EEOC regulations include a significant lifting restriction lasting several months as an example of a covered disability.
According to the Fourth Circuit, the trial court's holding that the temporary nature of the employee's injuries precluded him from alleging a disability as a matter of law is contrary to both the text and the purpose of the ADAAA and its implementing regulations. The Fourth Circuit ruled that the employee "has unquestionably alleged a 'disability' under the ADAAA sufficiently plausible to survive a ... motion [to dismiss for failure to state a claim]."
The Fourth Circuit rejected the employer's argument that a temporary impairment cannot constitute a disability. The employer argued that the EEOC regulations defining disability to include short-term impairments were not entitled to Chevron deference.2 The court ruled that such deference was appropriate because the ADAAA is ambiguous as to whether temporary impairments qualify as disabilities and the EEOC's interpretation of the ADAAA is reasonable. Second, the employer argued that the EEOC regulations did not apply to this employee because his temporary impairment was due to injuries, not a permanent or long-term condition. Rebuffing this argument, the court noted that nothing in the regulations limited coverage based upon the cause of the impairment or implied that an injury cannot be a covered impairment.
In conclusion, the Fourth Circuit ruled that "[u]nder the ADAAA and its implementing regulations, an impairment is not categorically excluded from being a disability simply because it is temporary." The Fourth Circuit reversed the trial court's dismissal of the termination claim and remanded the case for further proceedings.
What This Case Means for Employers
In addition to confirming that the scope of the ADAAA is much broader than the ADA, the Summers decision reinforces the fact that the determination as to whether an applicant or employee has a disability requires an individualized assessment. Factors that employers should consider in making such a determination include:
How difficult is it for the individual to perform the major life activity?
How much time does it take the individual to perform the major life activity?
Does the individual experience pain when performing the major life activity?
For what time period can the individual perform the major life activity?
How does the impairment affect the operation of a major bodily function?
Does the individual experience negative side effects of medication taken for the impairment?
Is the treatment regimen required for the impairment burdensome?
It can be complicated and difficult for an employer to make a determination whether an employee or applicant has a disability under the ADAAA, and then decide whether or how to proceed with the interactive process. Employers should consider consulting with legal counsel when an employee's physical or mental impairment raises questions of whether accommodation may be necessary.
1 As the court noted, for claims alleging that an employee was regarded as disabled, the regulations provide that transitory and minor impairments, like those with an expected duration of six months or less, will not be considered a disability.
2 Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) (holding that courts should defer to agency interpretations of statutes they enforce unless such interpretations are unreasonable).