Tuesday, June 25, 2024

Temporary impairments as ADA disabilities

Does recovery following surgery qualify as a "disability" under the ADA? Well, it depends.

Consider, for example, the recent court of appeals decision in Long v. KeltanBW. Long worked as a floating teacher in a daycare center owned and operated by KeltanBW. Less than one month after starting her job, Long took time off for liposuction surgery. Upon her return to work eight weeks later, the employer assigned her to the preschool rooms to accommodate her temporary post-surgery lifting restrictions. Within a couple of months, however, KeltanBW fired her for poor attendance. 

Long sued, claiming disability discrimination.

The court of appeals disagreed and upheld the trial court's dismissal of her discrimination claim.

According to the EEOC, "It is not essential for an impairment to be permanent to be considered a disability." If a temporary impairment takes a long time to heal, for example, it could be considered a disability. Short-term, temporary impairments or restrictions, however, generally do not qualify as disabilities under the ADA because they are not "substantially limiting" of a major life activity.

That's what killed Long's claim. As the court of appeals wrote: "The nature of any limitations caused by Long's claimed impairments after surgery were minor and of short duration. She could still care for herself, work, perform manual tasks, walk, see, hear, speak, and breathe, even though she was tired and sat down sometimes at work. Long cared for herself and others during that time."

If you have an employee on a temporary medical restriction, it is important to talk to your employment counsel before making any decisions about their employment. "It depends" is our way of saying, "You might get sued."