When is a “temporary illness” a “protected disability”? In the past, employers have generally understood that temporary disabilities, such as a broken arm, did not qualify as protected disabilities.

But this is not always the case under the state Fair Employment and Housing Act (FEHA), which generally has a broad definition of what constitutes a disability, or under the 2008 amendments to the Americans with Disabilities Act (ADA) (the amendments are known as the “ADAAA”).

Although you may assume that a short-term ailment does not need accommodation, if the temporary disability limits a major life activity, the temporary disability may need to be treated just like more permanent disabilities. An impairment does not need to last a particular length of time to be considered substantially limiting under the ADAAA.

A recent federal case highlights this issue. In a case of first impression, the court held that “a sufficiently severe temporary disability” may be protected under the amendments to the ADA. Summers v.Altarum Institute Corp.

Carl Summers worked as a senior analyst for a government contractor, Altarum. His job required travel to a client office. On his way to the client’s office one day, Summers fell and hit both knees against a train platform. He fractured his left leg and tore the meniscus tendon in his left knee and also fractured his right ankle and ruptured a tendon in his right leg. He had two surgeries, involving plates and pins. His doctors instructed him not to put any weight on his left leg for six weeks and
estimated he would not be able to walk normally for seven months.

Summers contacted an Altarum human resources representative about working from home as he recovered. He also contacted his supervisors and his client seeking advice about how to return to work. Summers suggested that he take short-term disability for a few weeks and then start working part time remotely, gradually increasing his hours until he worked full time remotely.

Altarum never followed up on Summers’ request to discuss how he could begin to return to work. Instead, a month and a half after the accident, Altarum terminated Summers “in order to place another analyst in his role” at the client.

Summers sued, alleging that the employer unlawfully fired him because of his disability and failed to reasonably accommodate him. The trial court dismissed Summers’ lawsuit and held that a temporary condition, even up to a year, was not covered under the ADA. But the trial court relied on cases that were decided before the amendments to the ADA.

On appeal, the court held that a sufficiently severe temporary disability may constitute a disability and that Summers could proceed with his lawsuit. Summers alleged that his accident left him unable to walk for seven months and that without surgery, pain medication and physical therapy, he “likely” would not have been able to walk for far longer. The court found that the text and purpose of the ADAAA “make clear that such impairment can constitute a disability.”

The court noted that the ADAAA was intended by Congress to liberalize the ADA “in favor of broad coverage,” and Congress specifically directs courts to interpret the amended statute as broadly as possible.

The Equal Employment Opportunity Commission’s regulations also explicitly state that the “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of proving a covered disability. The regulations use the example of an individual with a back impairment that results in a 20-pound lifting restriction that lasts for several months as being a covered disability under the ADAAA.

In California, the test for what constitutes a disability is already, in many respects, broader than the federal test. Under FEHA, an individual need only be “limited” in performing a major life activity, not “substantially limited” as required under
federal law. FEHA specifically states that definitions of physical and mental disabilities are to be broadly construed.

A mental or psychological disorder or condition limits a major life activity if it makes the achievement of a major life activity “difficult.” “Major life activities” under California regulations can include physical, mental, social and employment related activities.

State disability regulations exclude “mild conditions” from the definition of disability if these conditions do not limit a major life activity. These excluded conditions have little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders.” The determination will be made on a “case-by-case basis,” and it is risky for an employer to automatically assume a condition will be excluded.

Whichever law provides more protection, state or federal, will apply. California’s disability regulations also define “disability” as any matter covered by ADA or the ADAAA that offers broader protection than California law.

Both state and federal law, with the recent amendments, are clear: the standard is pre-disposed toward expansive coverage. The intent of the law is more focused on what types of reasonable accommodation will allow the employee to continue to work, rather than on whether the condition is covered.

So what should employers do?

• If you have any questions on whether an impairment requires accommodation, consult legal counsel. This is a complicated area and employers should not make these decisions alone. A misstep can result in significant liability.
• Look at the seriousness of the impairment, not the duration.
• Consider whether the impairment affects the ability of the employee to perform a major life activity. Does it make an activity “difficult” due to pain, time expended, required treatments, etc.?
• Don’t consider “mitigating measures,” such as pain medication or physical therapy, that limit or reduce an impairment’s symptoms. Mitigating measures are not to be considered in determining whether someone has a disability.
• Err on the side of considering the impairment a disability and engaging in the interactive process to find a reasonable accommodation.
• Don’t forget other obligations. Even if the impairment does not ultimately qualify as a “disability,” it may qualify as a “serious health condition” entitling the employee to time off under the federal Family and Medical Leave Act or the
  California Family Rights Act.

One more set of rules and regulations for the small-business owner to be aware of.

The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.