Just this month, the Ninth Circuit Court of Appeals held that even temporary health conditions without long-term effects may qualify as disabilities protected by the federal Americans with Disabilities Act (ADA). While this holding is novel under the ADA, California, Oregon, and Washington state laws have long recognized that a condition need not necessarily be long-term or permanent to trigger disability protections.
What happened in the case at issue?
In Shields v. Credit One Bank, Kate Shields sued her employer for discharging her from her human resources position instead of allowing her the additional eight weeks of unpaid leave that her doctor recommended for further recovery from a bone biopsy surgery to rule out cancer. Her employer claimed her position had been eliminated and declined to consider further leave beyond what she had already received. The U.S. District Court of Nevada dismissed the case before trial, contending that Shields failed to plead any permanent or long-term impairments from her condition, which the Trial Court considered a “threshold element” to establish liability under the ADA.
The Court of Appeals reversed, relying on the ADA Amendments Act of 2008 (ADAAA) and its 2011 regulations to conclude that the duration of the limitation is only one factor to consider in determining if an impairment “substantially limits a major life activity” warranting protection under the ADA. As you may recall, the ADAAA was specifically intended to shift employers’ focus away from whether a condition is sufficiently limiting to whether the condition can be reasonably accommodated. The ADAAA effectively expanded the ADA’s definition of disability, excluding only conditions that are “transitory and minor.”
In applying that standard in Shields, the Court of Appeals flatly rejected any bright-line rule excluding short-term impairments in favor of one that considers the totality of the circumstances, including the severity of the restrictions. The Court cited the ADAAA interpretative guidance which states:
[A]n 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.
See, 29 C.F.R., Pt. 1630, App. (portion addressing § 16302.(j)(1)(ix)) (capitalization omitted). Given the severity of Ms. Shield’s restrictions, which were anticipated to last for several months despite the transitory nature of the underlying condition, the Court of Appeals held she was sufficiently “disabled” to trigger the ADA’s protections and proceed to trial.
What does this decision mean for employers?
This result is not a game changer for those employers operating in one of the many states (including Oregon, Washington, and California) whose laws already recognize that temporary conditions may qualify as disabilities. Likewise, employers in these states should not be surprised at the concept that a limited number of additional weeks of unpaid leave can be a reasonable accommodation.
However, this case offers a timely and important reminder for employers to:
- avoid any adverse actions following an employee’s disclosure of any health condition (physical or mental), even if seemingly temporary, absent sufficient proof that the employment action was taken for a legitimate nondiscriminatory reason;
- know when and how to properly engage in an interactive process to identify and provide any reasonable accommodations that enable the employee to perform the essential functions of their job when the employer is on notice that a health condition may interfere with job performance, even temporarily; and
- ensure managers and supervisors are aware that even temporary conditions can be disabilities requiring accommodation, and that they need to notify the appropriate HR professional in any situation involving an employee’s health condition.
Remember, these same anti-discrimination laws likewise prohibit employers from “regarding” an individual as disabled (that is, treating an employee as disabled whether they meet the definition or not). Thus, care must be taken to avoid the perception that an employee is being treated differently when a health condition has been disclosed or may be suspected under the circumstances.
It is tricky to juggle the many competing obligations in today’s ever-changing and dynamic work environments. However, employers can avoid costly missteps with:
- appropriate policies that ensure employees know what to do when accommodations may be needed,
- proper training of managers on what to do (and what NOT to do) when an accommodation is requested or an impairment becomes apparent, and
- effective involvement by qualified human resource professionals and/or employment counsel when appropriate.
The legal issues impacting workplaces are ever changing (Employment Law in Motion!) and since publication, new or additional information not referenced in this blog post may be available. Employers should feel free to call on the Miller Nash team if you have questions or need assistance, and always consult with an attorney for legal guidance.