Suppose you just hired an employee after a lengthy recruiting process. On the second day of her employment, the employee calls in and reports that she was in an off-duty accident and suffered a serious leg injury. Her doctor says that it is unlikely that she will be able to work for at least a month or two. After that, the doctor believes she could come back part-time, and should be fully healed within four months. The employee’s supervisor is frustrated. He is facing critical customer demands and insufficient workers to meet those demands. He wants you to replace the employee with the runner-up candidate from the recruitment process.

Even though the employee’s condition is only a temporary, short-term impairment (and she has no available FMLA), you are wondering whether you can still face potential liability for disability discrimination if you offer the runner-up the job? As a result of a new decision under the Americans with Disabilities Act (“ADA”), the answer is almost certainly “yes.”

In January of 2014, the Fourth Circuit Court of Appeals issued a decision in Summers v. Altarum Institute. It was the first federal appellate case to interpret new ADA regulations enacted in 2013. Those regulations, authorized under the 2008 ADA Amendments, reflected an expanded definition of “disability” in general, and specifically addressed temporary medical impairments that had not previously been recognized as “disabilities.” The Summers decision now affirms that temporary impairments can qualify as disabilities.

HR professionals must be aware of these changes and their new and significant impact on workplace decisions.

History of “Temporary” vs. “Permanent” Impairments. Prior to the 2008 ADA Amendments, most courts refused to recognize short-term conditions as disabilities under the ADA. For example, in Toyota v. Williams, (2002), the United States Supreme Court indicated that temporary impairments could not qualify as an ADA disability.

The adverse public reaction to Toyota and other decisions which narrowly interpreted the ADA led Congress to pass the 2008 ADA Amendments. One of the stated purposes of the Amendments was to overrule those cases which had narrowly construed “disability.” After the Amendments were passed, the Equal Employment Opportunity Commission (“EEOC”) issued interpretive regulations which detailed the expanded ADA protections. Among those were final regulations published in July of 2013 which clarified that temporary conditions lasting only a few months could constitute a legal disability and qualify for protection under the ADA.

EEOC Regulations on Short-Term Impairments. The 2013 EEOC regulations contain several provisions which confirm that even medical impairments which are temporary and remain only for a short period of time can qualify as disabilities under the ADA. For example:

“The effects of an impairment lasting or expected to last fewer than six months can be “substantially limiting” [under the definition of “disability”]. 29 CFR 1630.2(j)(ix) “Impairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.” 29 CFR 1630.2(j)(ix)(Appendix)

“For example, if an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months [he qualifies as having a disability].” 29 CFR 1630.2(j)(ix)(Appendix) “An impairment does not have to last for more than six months [to qualify as disabled].” 29 CFR 1630.2(j)(ix)(Appendix)

“The term ‘substantially limits’ shall be construed broadly in favor of ‘expansive coverage’ and ‘is not meant to be a demanding standard’.” 29 CFR 1630.2(j)(i)

Other than the example of the back injury with the 20-pound lifting restriction, the EEOC regulations do not further define “sufficiently severe”. Moreover, other than “several months” or “short periods of time,” there is no guidance on the shortest amount of time that a “sufficiently severe” impairment could exist and still qualify as a disability.

Initial Confusion Over Short-Term Impairments After ADA Amendments. Even after the ADA Amendments were passed in 2008, there was confusion over the application of the ADA to short-term temporary impairments. One source of confusion arose from the regulations themselves and others arose under a series of post- ADA Amendment court decisions.

The initial post-Amendment regulations addressed the definition of “being regarded as having a disability”. Those regulations provided that someone is not “regarded as being disabled” if they are perceived to suffer from only a “transitory and minor” condition. “Transitory” was defined as “lasting or expected to last six months or less”. 29 CFR 1630.15(f). Some individuals incorrectly applied this provision to the definition of an actual “disability.” In response, the EEOC explained, in the 2013 regulations, that the “six months or less” exclusion applies only to the definition of “regarded as” and not to the definition of “actual disability.” Instead, as noted above, the new regulations confirm that medical conditions can qualify as disabilities even if they last for less than six months and only for a “short period of time.”

Likewise, some of the first courts to issue decisions under the 2008 ADA Amendments still took a fairly narrow approach to the definition of “disability,” particularly as it applied to shorter-term impairments. For example, federal district courts held that the following were not “disabilities,” on grounds that the conditions were too “short term:” a back and shoulder injury, an appendectomy with unrelated infections from an IUD and oral implant, a hernia, and transverse myelitis (inflammation of the spinal cord). Those cases continued to raise questions about whether short term conditions were protected as “disabilities”.

Fourth Circuit Broadens Coverage of Short-Term Impairments. In January of 2014, the Fourth Circuit, in Summers, provided the first appellate-level decision on whether short-term conditions qualify as “disabilities” under the 2008 ADA Amendments and subsequent regulations. In Summers, an employee fell while exiting a commuter train. He broke his left leg and right ankle and suffered other injuries. His doctor prohibited him from putting weight on his left leg for six weeks and estimated that he would not walk normally for seven months. The doctor recommended that he be off work for several weeks, then start to work remotely from his home, followed by a gradual increase in hours until he was able to return full-time.

The Company concluded that the injury was short term and temporary and, therefore, not covered by the ADA. It elected to replace Mr. Summers to meet business needs. Mr. Summers filed a lawsuit under the ADA. The federal district court agreed with the employer, and dismissed the case on grounds that Mr. Summers was not disabled, even under the 2008 ADA Amendments and subsequent regulations.

The Fourth Circuit reversed the district court and reinstated Mr. Summers’ claim against his employer. It held that although the impairment was both temporary and short term, and even though the employee would be able to work again within a few weeks, his condition met all of the elements of “disability” as clarified by the 2013 EEOC regulations.

The Summers case casts doubt on the continued validity of the previous district court decisions and reflects an expansive interpretation of “disability” to include very short term and temporary impairments. HR professionals need to avoid relying solely on cases decided before Summers in determining whether a short-term condition is a “disability.”

Short-Term Impairments under WFEA. Many Wisconsin employers are covered by disability discrimination and accommodation provisions under both the ADA and the Wisconsin Fair Employment Act (“WFEA”). Those two laws have distinctly different definitions of what is a reasonable accommodation and what is a legal disability.

Unlike the amended ADA, the WFEA has been construed as covering only “permanent” impairments, not “temporary” medical conditions. Thus, a Wisconsin employee with a short-term medical impairment may find that she is covered by only the federal ADA and not the WFEA. Employers need to be careful not to apply the narrower definition of “disability” under the WFEA to decisions covered by the ADA. (Wisconsin employers with over 15 employees are covered by both the ADA and the WFEA.)

Conclusion. Following the decision in Summers, it seems fairly clear that the employee in the hypothetical example of the opening paragraph would have a strong argument that she is legally disabled under the ADA (even if she would not be classified as disabled under the WFEA). This does not necessarily mean that the company could not replace the employee; it only means that, to avoid significant legal risk, the company must engage in an “interactive process” with the new employee to explore whether the company could provide an accommodation (including a special leave of absence) to the employee that would be reasonable under the circumstances and which would not present an undue hardship on the Company. Those questions involve more fact gathering and analysis. However, relying on a conclusion that the new employee is not legally “disabled” would be a dangerous risk, even though her condition is a short-term, temporary impairment.

Questions concerning this topic can be directed to our employment team. Please contact Gregory A. Grobe, Ross W. Townsend, Jodi L. Arndt or Kurt A. Goehre.

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Law Firm of Conway, Olejniczak & Jerry, S.C.

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