4TH CIRCUIT FIRST TO RULE ON ADAAA PROVISION RELATED TO TEMPORARY IMPAIRMENTS

The case is Summers v. Altrium Institute [2014 U.S. App. LEXIS 1252] decided on 1/23/14 by the 4th Circuit. Summers was a senior analyst at Altrium when he had an unfortunate accident stepping out of a train in which he fell on the platform and suffered serious injuries to both legs that severely restricted his ability to walk. His injuries required multiple surgeries and it was estimated by doctors that he would not walk normally for at least seven months, and probably longer. He was fired two months after his injuries. There were other questions in this case (e.g., reasonable accommodation involving a wheelchair), but the critical issue was whether he was disabled within the meaning of the ADA; most importantly, whether his impairment severely restricted his ability to walk under the ADA Amendments Act (of 2008) (ADAAA). The district court ruled he was not disabled within the meaning of the ADA and granted summary judgment to Altrium. The 4th Circuit overturned the summary judgment ruling that the district court relied on pre-ADAAA case law made obsolete by the ADAAA and subsequent regulations written by the EEOC.
Prior to the ADAAA, Section 1630.2(j)(2) of the EEOC Interpretive Guidelines stated the following:

In deciding whether an individual is substantially limited in a major life activity, courts should consider the nature and severity of the impairment; the duration or expected duration of the impairment; and the permanent or long term impact, or expected permanent or long term impact, of the impairment.

The underscored portion of the guidance was interpreted in many pre-ADAAA cases to mean that a person with severe impairment was not substantially limited (or severely restricted) if the individual was expected to recover, regardless of the expected recovery time. Examples of pre-ADAAA rulings following this guidance include back injuries (Halperin v. Abacus Tech, 1997), abdominal surgery (McDonald v. Pennsylvania, 1998), wrist and elbow surgery (Gutridge v. Clure, 1998), back surgery (Pollard v. High’s of Baltimore, 2002), and even major heart attacks (Katz v. City Metal, 1996). For example, in Halperin, the 4th Circuit ruled “it is evident that the term ‘disability’ does not include temporary medical conditions, even if those conditions require extended leaves of absence from work.” The same court subsequently applied the same reasoning in Pollard, where the expected recovery period was nine months.

Section 3(3)(B) of the ADAAA addressed the issue of temporary impairment by stating that “A transitory impairment is an impairment with an actual or expected duration of 6 months or less.” Interpreted literally, this means that Pollard’s injury was not transitory because his expected recovery period was nine months. It has taken this long (the ADAAA became effective in January 2009) for a case on transitory (or temporary) impairments to reach a circuit court, Summers being that first case.

It should be noted that it is possible to misinterpret Section 3(3)(B) because it is attached to the “third prong” of the definition of being disabled (being regarded as having an impairment that severely restricts a major life activity) as opposed to prongs 1 (current severely restrictive impairment) and 2 (history of severely restrictive impairment). In other words, does it apply, for example, to a current impairment as in the Summers case? In fact, in the updated Appendix to the ADA regulations, the EEOC makes it easier to satisfy the severely restrictive criterion under the first two prongs. Accordingly:

Therefore, an impairment does not have to last for more than six months in order to be considered substantially limiting under the first or the second prong of the definition of disability. For example, as noted above, if an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability. At the same time, “[t]he duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity. Impairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.” Joint Hoyer-Sensenbrenner Statement at 5.

In other words, the duration of the impairment is an important factor, but even if it’s less than six months, it would be considered substantially limiting, even for a short period of time, if it is sufficiently severe. In fact, it is this segment of the EEOC regulations that the 4th Circuit cited in overturning the summary judgment. Accordingly:

The EEOC regulations also expressly provide that effects of an impairment lasting or expected to last fewer than six months can be substantially limiting for purposes of proving an actual disability. 29 C.F.R. ß 1630.2(j)(1)(ix) (2013). According to the appendix to the EEOC regulations, the duration of an impairment is one factor that is relevant in determining whether the impairment substantially limits a major life activity. 29 C.F.R. ß 1630.2(j)(1)(ix)(app.) (2013). Although impairments that last only for a short period of time are typically not covered, they may be covered if sufficiently severe. 29 C.F.R. ß 1630.2(j)(1)(ix)(app.) (2013).

Sorry for all of the technical mumbo jumbo --- the key is that Summers, in the eyes of the court, satisfied both interpretations of the ADAAA language on transitory impairments: (1) the duration was expected to be more than 6 months, and (2) it was sufficiently severe. I look forward to seeing such cases reach the other circuit courts, especially with how much deference is accorded to the EEOC regulations. There is nothing in the ADAAA itself that applies to the first two prongs. Therefore, the key will be whether other circuits defer to the EEOC regulations as the 4th Circuit did in the Summers case.

by Art Gutman, Ph.D., Professor, Florida Institute of Technology

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