Short-Term Impairments May Be Covered by the ADA if Sufficiently Severe

Jennifer E. Engen

Takeaway: Employers are advised to not assume that an impairment of short duration is not a disability under the ADA, as amended. 

​The definition of “disability” in the Americans with Disabilities Act (ADA) does not require a showing of long-term effects for an impairment to be considered substantially limiting, the 9th U.S. Circuit Court of Appeals ruled. The plaintiff’s inability to perform major life tasks for more than two months was held to be substantially limiting and of sufficient duration and impact to qualify as a “disability” under the ADA.

The plaintiff began working in the human resource department of a bank in November 2017. In April 2018, the plaintiff underwent a bone biopsy that required hospitalization for three days. The biopsy involved creating a 10-centimeter skin incision and a window into the bone measuring 1 centimeter in width by 2 centimeters in length. The biopsy had a substantial physical impact on the plaintiff, who was unable to return to work for over two months.

Initially, the plaintiff’s doctor completed a form stating that the plaintiff would be unable to perform her essential job functions, with or without accommodations, for two months. The major life activities that were substantially limited by the plaintiff’s medical condition or accompanying treatment were sleeping, lifting, writing, pushing, pulling and manual tasks. In light of these limitations, the bank approved an unpaid, eight-week leave of absence as an accommodation under the ADA.

As the date for the plaintiff’s return to work approached, the plaintiff’s doctor prepared a note on June 18, 2018, indicating that she would be unable to return to work two days later as previously planned. The note stated that the plaintiff had an appointment scheduled on July 10, 2018, at which time an updated return-to-work date would be discussed. Shortly after being provided the doctor’s note, the bank advised the plaintiff that her position was being eliminated and she was being terminated.

The plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC) and received a notice of right to sue. She then filed a district court action alleging disability discrimination in violation of the ADA. The district court granted the defendant’s motion to dismiss, finding the plaintiff had failed to adequately plead that an impairment substantially limited her ability to perform major life activities, because she did not allege permanent or long-term effects from her impairment sufficient to constitute a disability under the ADA.

The court of appeals reversed and remanded the district court’s judgment, holding that the plaintiff had adequately pleaded a disability under the ADA. The court found the district court had applied an erroneously high standard requiring the plaintiff to allege a permanent or long-term impairment in order to plead a disability.

The court relied on the ADA Amendments Act of 2008 (ADAAA), which rejects a narrow understanding of what it means for an impairment to substantially limit major life activities, and the EEOC’s 2011 regulations amending the regulatory definition from involving “permanent or long-term” effects to now include “effects of an impairment lasting or expected to last fewer than six months.” The duration of an impairment is a factor to consider in determining whether the impairment substantially limits a major life activity, but there is no rule excluding short-term impairments that may be covered if they are sufficiently severe. Thus, the court found that the definition of “disability” under the ADA is not subject to any temporal limitations.

The court then evaluated whether the plaintiff was unable to perform major life activities and found this to be true. The plaintiff’s temporary impairment lasting for more than two months and impeding her ability to groom, push, pull, lift and perform the core physical tasks included in her job description was sufficiently severe to qualify as substantially limiting under the ADA and EEOC regulations.

Shields v. Credit One Bank N.A., 9th Cir., No. 20-15647 (May 6, 2022).

Maria Cáceres-Boneau is an attorney with Duane Morris LLP in New York City.

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