Coverage under disabilities act continues to grow

Just what exactly is a disability under the Americans with Disabilities Act, anyway? The short answer, just about everything.

The ADA prohibits covered employers, those with 15 or more employees, from discriminating against a qualified individual on the basis of disability. It follows that the first question in most ADA cases is whether the individual has a disability, which includes “a physical or mental impairment that substantially limits one or more major life activities.”

The 2008 amendments to the ADA substantially broadened the scope of the ADA, primarily by expanding the list of major life activities and adding a category for major bodily functions.

However, the ADA Amendments Act of 2008 also abrogated several Supreme Court cases allowing ameliorative measures, such as medications, to be considered in determining whether an impairment qualified as a disability. With few exceptions, the amended act began requiring employers to consider the alleged disability in its untreated state without any mitigating measures that might otherwise negate the impairment. To make matters worse, a recent 4th Circuit decision makes it clear that

even short-term impairments can qualify as disabilities,

especially when examined in an untreated state. Historically, temporary impairments did not generally qualify as disabilities under the ADA.

In Summers v. Altarum Institute Corp., the U.S. Court of Appeals for the 4th Circuit reversed and remanded the district court’s dismissal of a disability discrimination claim. The suit was filed by Carl Summers, a former employee of Altarum who fell and broke his left leg and right ankle, resulting in surgery, bed rest, pain medication and physical therapy. Significantly, the treating physicians estimated Summers would not be able to walk normally for seven months.

Despite his proposed accommodations, Summers was terminated and replaced about six weeks after his injury. In his suit, Summers alleged that without the aforementioned treatment, he would not have been able to walk for more than a year.

The district court dismissed the disability discrimination case on the grounds that Summers’ impairment did not qualify as a disability because it was a temporary condition, which did not fall within the purview of the ADA. Applying the amended act and its ensuing regulations, the 4th Circuit reversed that decision holding that short-term impairments can qualify as disabilities if they are “sufficiently severe.”

The controlling regulations, promulgated by the Equal Employment Opportunity Commission, suggest that a person with a back impairment that results in a 20-pound lifting restriction lasting for several months would have a sufficiently severe impairment that qualifies for ADA protection. Using that example as its measuring stick, the 4th Circuit determined that Summers’ impairment which rendered him immobile for more than seven months was necessarily sufficiently severe to qualify for ADA protection.

Importantly, the Summers decision did not change the law. It’s just among the first cases to interpret the amended act in such a way that truly highlights its liberal application. Most notably is its determination that mitigating measures such as surgery, bed rest, pain medication and physical therapy may not be considered in determining whether an individual has a qualifying disability.

So as the amended act unfolds in the real world, employers are reminded of the ever-expanding ADA and cautioned against knee-jerk employment decisions which might have been permissible the ADA was amended.

Going forward, employers should focus less on whether an impairment qualifies as a disability and more on whether there are any reasonable accommodations for that disability. 

Source: http://www.macon.com/2014/02/04/2916681/employers-corner-coverage-under.html Jason Logan, The Telegraph  

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