The ADA was adopted nearly twenty-five years ago, and courts have been asked ever since to interpret what a "disability" is—how impaired must you be to be protected by the ADA? When the ADA was amended in 2008 to broaden the definition of "disability," the EEOC began considering "disabled" employees to include those who have temporary ailments and are recovering, not merely those with some permanent, limiting condition. Now the EEOC has support from the Fourth Circuit Court of Appeals.
In Summers v. Altarum Institute, the Court found that Summers, a temporarily injured employee, could assert an ADA claim. Summers tripped and fell outside of work, breaking his ankle and his leg and tearing a muscle in his knee. Although some of the injuries required surgery, he was expected to make a full recovery within six to twelve months. He had not become someone with any permanent limitation. Still, the Court concluded that Summers could assert an ADA claim because being injured and out of work that long could be a "disability."
TIP: When deciding whether an employee is disabled under the ADA, focus on how long the employee must be out of work and how severe the injury is. Be ready to consider accommodating requests for leave to recover, even when the employee will no longer be limited after recovery.
The Court did not attempt to explain the circumstances under which a temporary condition becomes a disability. Instead, the Court concluded that an employer cannot avoid litigation simply because the employee is not permanently injured in some way. This conclusion is important because the ADA can, according to the EEOC and a growing number of courts, require employers to accommodate an employee's need for time off work, if granting that time will allow the employee to return to work. Now, the universe of employees entitled to litigate whether they were owed time off has greatly expanded. And, this route to litigation exists for an employee even when the FMLA does not apply at all.
To be safe, for every employee who becomes unable to perform his or her job due to injury, the employer should examine how long the employee must be out of work and how limiting the temporary condition is. Almost always, unless business conditions make it an undue hardship, it will be important to allow the employee time off under the ADA. Otherwise, the EEOC, now backed by this Fourth Circuit opinion, will claim the employer has violated the ADA and is liable for wrongful discharge.