Temporary Disabilities and The ADA

After the Americans With Disabilities Act (ADA) was passed, the single most litigated issue was whether a particular condition was a disability. One point was resolved early: the Equal Employment Opportunity Commission (EEOC) clarified through regulations that a temporary impairment was not a disability within the meaning of the Act. Naturally, lawsuits started to be filed, judgments were appealed, and the Supreme Court started handing down rulings. Moreover, each new Supreme Court ruling restricted the scope of ADA’s reach more than the last. By 2007, ADA was a paper tiger from an employer liability standpoint.

In 2008, Congress pushed back with the Americans with Disabilities Act Amendment Act (ADAAA). The most important thing to know about the ADAAA is that it vastly broadened the scope of “disability.” ADAAA specified “The definition of disability in this chapter shall be construed in favor of broad coverage of individuals under this chapter, to the maximum extent permitted by the terms of this chapter.”

As a result, litigation over “disability” nearly became extinct. Instead, lawsuits started to focus on whether employers followed the ADA process to determine whether a reasonable accommodation was in order. That remains a key area of litigation because employers often fail to recognize when they should enter into the ADA interactive process. For details, see Advanced Topics in HR Management: When to Enter Into the ADA Interactive Process.

However, even though the focus has shifted, we still see lawsuits based on disputes about the meaning of “disability.” Despite the fact that ADA does not specifically require an impairment to be permanent, and despite the fact that Congress has directed courts and agencies to interpret “disability” as broadly as possible under the Act, some employers (and even some lawyers) have continued to require an impairment to be permanent before considering the role of ADA.

Naturally, the very first post-ADAAA lawsuit on this very point recently went to a federal court of appeals. Here are the facts:

Carl Summers injured himself getting off a commuter train. The injuries were so bad that he could not put any weight on one leg for six weeks and would not likely walk normally for seven months. In fact, without substantial care and treatment, Summers probably would not have been able to walk normally for a year. Summers contacted his employer, Altarum, to propose an accommodation. He suggested short term disability leave followed by part time work from home, gradually increasing his hours as his health allowed. Altarum’s insurance carrier granted Summers’ short term disability claim but Altarum itself never followed up on Summers’ request for accommodation. In fact, instead of engaging in ADA’s interactive process, Altarum simply terminated Summers’ employment.

Naturally, Summers sued Altarum for disability discrimination in violation of his rights under the ADA. Ultimately, Altarum asked the trial court to throw Summers’ case out because he did not have a disability within the meaning of the Act. The trial court ruled, “

[A] temporary condition, even up to a year, does not fall within the purview of the [A]ct,” and thus concluded Summers was not disabled. Consequently, the trial court dismissed Summers’ case. Summers appealed.

The Fourth Circuit Court of Appeals began its analysis by acknowledging that ADA prohibits covered employers from discriminating against qualified individuals on the basis of disability. It observed that, in order to qualify for protection under the Act, Summers must be able to show he had a “disability” within the meaning of the Act. The Court then went on to examine the rationale of the lower court’s ruling. Essentially, the Court of Appeals ruled the trial court would have been right in 2007, but the temporary nature of Summers’ admittedly severe injuries was not a sufficient basis for holding he was not disabled post-ADAAA:

Under the ADAAA and its implementing regulations, an impairment is not categorically excluded from being a disability simply because it is temporary. The impairment alleged by Summers’ falls comfortably within the amended Act’s expanded definition of disability.

Although the Fourth Circuit Court of Appeals does not have jurisdiction in Oklahoma, its analysis was thorough and compelling. We would expect substantially the same ruling in the Tenth Circuit, which does have jurisdiction in Oklahoma. Consequently. Employers should not assume employees with temporary impairments are excluded from ADA coverage.

Oklahoma Broadens Workers’ Compensation Retaliation

Before recent changes were made, an Oklahoma employer could only be sued for workers’ compensation retaliation if it fired an employee for hiring an attorney, for filing a claim, for testifying on a workers’ comp matter, or for seeking workers’ compensation benefits. As of February first, a new law prohibits discrimination or retaliation of any kind against an employee for exercising workers’ compensation rights. As a result, workers’ compensation retaliation is now like Title VII retaliation in that accusations may potentially arise out of any tangible, negative employment action. Such actions include obvious things like termination of employment, but also less obvious things like granting a raise the employee considers to be too small under the circumstances.

OSHA Activity

In January, we discussed how cold temperatures are a recognized hazard from which employees must be protected. As it happens, so are hot temperatures. Obviously, the heat of a blast furnace would qualify for OSHA protection, but so would the heat of a sauna, as one spa recently discovered. An employee responsible for setting up and maintaining a sauna died. As a result, the Super King Sauna faces $25,000 in penalties plus measures to prevent future injuries. OSHA found the following infractions, among others:

• There was no heat stress illness prevention program;

• The company failed to provide personal protective equipment to employees who worked in excessive heat;

• There was no written hazard communication program;

• The company did not use warning tags to indicate burn hazards and carbon monoxide exposure; and,

• The company had not evaluated whether any spaces where employees worked would constitute “confined spaces” for OSHA purposes.

OSHA will apply its standards wherever a recognized hazard exists. It will require employers to protect employees from those hazards or to mitigate the risks of those hazards to employees. As this case demonstrates, those hazards arise in places you may not expect, like at a spa.

Please do not hesitate to contact the Firm with any questions you may have about the effect of laws and regulations on your business or its operations.