Monday, September 13, 2010

ADA Amendments redefine cancer as a disability

More than two years ago, I criticized a case that dismissed an employee’s disability discrimination claim on the basis that his cancer was limiting enough to qualify as a protectable disability:

This case leaves a bad taste in my mouth. An employee, suffering from cancer, who had a piece of his jaw replaced with a prosthesis, should be protected as having a “disability.” This case would allow a termination of female employee with breast cancer post-mastectomy. That result just doesn't sit right with me.

I think the cancer-is-not-an-ADA-disability cases are a thing of the past. Effective January 1, 2009, Congress amended the ADA to reinstate “a broad scope of protection.” Specifically, Congress found that the United States Supreme Court had narrowed the protections intended by the ADA, and rejected the holdings of Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. The ADAAA did not change the statutory definition of “disability,” but made significant changes in how it is interpreted. Importantly, the ADAAA clarified that the operation of “major bodily functions,” including “functions of the immune system,” constitute major life activities under the ADA. Moreover, the ADAAA provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” The “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”

Hoffman v. Carefirst of Fort Wayne (N.D. Ind. 8/31/10) is one of the first cases decided under 2008’s ADA Amendments. It provides a poignant example of these new definitions in practice.

Stephen Hoffman claimed that his employer, Advanced Healthcare, terminated him because of his Stage III renal cancer (in remission at the time of his termination). In its defense, Advanced Healthcare argued that because Hoffman did not have a physical impairment which substantially limited a major life activity, he was not disabled under the ADA—the cancer was in remission, Hoffman returned to work without restrictions, he carried out his regular job duties of 40 hours a week a full year, and he did not miss any significant work-time.

The court rejected Advanced Healthcare’s argument that it “highly doubts that Congress intended all cancer survivors in remission, with no medical evidence of active disease, to be considered disabled as a matter of law for the rest of their lives.” Instead, the court concluded:

Because it clearly provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,” and neither side disputes that Stage III Renal Cancer, when active, constitutes a disability, this Court must find that Hoffman was “disabled” under the ADAAA. In other words, under the ADAAA, because Hoffman had cancer in remission (and that cancer would have substantially limited a major life activity when it was active), Hoffman does not need to show that he was substantially limited in a major life activity at the actual time of the alleged adverse employment action.

This case not only serves as an excellent illustration of the problems addressed by the ADA Amendments, but is also shows how difficult it will be going forward for employers to prove that an employee’s medical condition does not qualify as an ADA-disability. If we assume that nearly all medical conditions are “disabilities” (and this assumption is pretty safe), then employers needs to refocus on the interactive process to reach a reasonable accommodation necessary to enable an employee to perform the essential functions of the job. Most ADA cases will now be won or lost on this issue, and it is incumbent on employers to put their best foot forward by appearing to have been as reasonable as possible with disabled employees.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or