The U.S. Court of Appeals for the Ninth Circuit, the federal appellate court with jurisdiction over much of the western United States (including Washington, Oregon, California and Idaho), ruled last week that an employee’s temporary impairment can qualify as a disability under the Americans with Disabilities Act (“ADA”). The Ninth Circuit’s decision resolves an important question under federal disability law and could signal a significant change in how employers are required to address employees’ short-term medical limitations.
In Shields v. Credit One Bank N.A., plaintiff Shields was employed by Credit One Bank (“Bank”) as a human resources generalist. Shields underwent biopsy surgery. The biopsy revealed that Shields did not have cancer, but she had a number of post-surgery limitations (e.g., unable to use her right arm to lift, pull, push, type, write, tie her own shoes or use a hair dryer), and these limitations indisputably precluded Shields from performing the essential functions of her position. The Bank put Shields on a short-term leave of absence, but when she was not ready to return to work after two months the Bank terminated her employment. Shields’ lawsuit alleges the Bank violated the ADA by terminating her rather than offering her a reasonable accommodation, specifically, extending her leave of absence to allow her additional recuperation time.
The Bank defended on the grounds that Shields did not have a disability under the ADA because her post-surgery limitations, while significant, were not sufficiently “permanent or long-term” to meet the law’s requirements. The District Court agreed and dismissed Shields’ claim.
The Ninth Circuit reversed. Under the ADA, a disability is defined in relevant part as “a physical or mental impairment that substantially limits one or more major life activities,” without any reference to how long the “substantial limit” might last. However, the Equal Employment Opportunity Commission’s (“EEOC”) regulations interpretating the ADA clarify that “the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting.” The EEOC has advised similarly in its guidance materials, for example, opining that 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.” Based on this guidance, the Ninth Circuit had little trouble concluding that the District Court was wrong when it ruled categorically that the short-term nature of Shields’ limitations meant she could not establish that she suffered from a disability.
It is clear from the Ninth Circuit’s opinion that employers cannot reflexively dismiss an employee’s request for an accommodation simply because the impairment is temporary. However, many more questions about employers’ obligations remain unanswered:
- Is there any minimum duration an impairment must last in order to qualify as a disability? For example, if Shields had only been incapacitated for two weeks would she have met the definition?
- The Ninth Circuit found that Shields suffered an “impairment” under the ADA by virtue of the surgery itself. It is quite common for a surgical procedure to incapacitate the patient for a period of time. Under what circumstances will such limitations not qualify as a disability?
- Does the nature of the employer’s obligation to provide a reasonable accommodation differ based on the temporary or short-term nature of the impairment? For example, would an employer have the same obligation to modify an employee’s non-essential job duties for a short-term impairment that it would for a longer-term impairment?
It will be up to future courts to decide these questions, and no doubt many more. Practically speaking, in most instances the best advice for employers is to focus more attention on the nature of the employee’s requested accommodation and less attention on whether the employee’s impairment technically qualifies as a disability. This is true not only because of the outcome in Shields, but because state disability laws may require employers to accommodate short-term disabilities separate and apart from what is required by the ADA under federal law. For example, Washington’s state disability law expressly includes “temporary” impairments.
In the meantime, please feel free to reach out to any of our labor and employment attorneys if you have questions about the Ninth Circuit’s decision or about your obligations to provide employees—including those with temporary impairments—with reasonable accommodations for their disabilities.