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Are Temporary Impairments ADA-Protected Disabilities? You Bet.

Disability discrimination cases no longer focus on whether an employee is legally disabled, but instead on whether an employer engaged the employee in the interactive process towards a reasonable accommodation.

January 28, 2014
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Related Topics: Legal Compliance, Medical Benefits Law, Disability Benefits, Disabilities, Discrimination and EEOC Compliance, Health and Wellness, Policies and Procedures, Legal
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When Congress amended the Americans with Disabilities Act in 2009, the goal was to bring the statute back to its original intent: the protection of the legitimately disabled from suffering discrimination in the workplace.

Suppose an employee suffers a serious injury to his legs that prevents the employee from walking and restricts him to a wheelchair, but with surgery and lots of physical therapy the employee will regain the use of his legs at some point in the future. Is this employee “disabled” under the ADA? More specifically, if the employer refuses even to consider any reasonable accommodation that will permit the injured employee to return to work, and instead fires the employee, has the employer violated the ADA?

According to the 4th Circuit’s decision late last week in Summers v. Altarum Institute, the answer is a resounding “yes.”

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 [ADA Amendment Act] 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.…
In sum, nothing about the ADAAA or its regulations suggests a distinction between impairments caused by temporary injuries and impairments caused by permanent conditions. Because Summers alleges a severe injury that prevented him from walking for at least seven months, he has stated a claim that this impairment “substantially limited” his ability to walk.

Employers should not hold out hope that other circuits will interpret the ADAAA’s application to temporary impairments differently. The 4th Circuit is one of the more notoriously conservative circuits. More employee-friendly circuits (our 6th Circuit, for example) should have little difficulty reaching the same conclusion.

The takeaway for employers is no different from that which I have been cautioning for years. Disability discrimination cases will no longer focus on whether an employee is legally “disabled,” and instead will focus on whether an employer engaged the employee in the interactive process towards a reasonable accommodation. If you focus on the former and ignore the latter, as Summers illustrates, you will be fighting a severely uphill battle in defending your actions in court.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.

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