Temporary Impairment May Qualify as Disability Under ADA

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Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

On May 6, 2022, in Shields v. Credit One Bank, N.A., 32 F.4th 1218 (2022), the Ninth Circuit Court of Appeals held that an actual impairment under the definition of “disability” in the Americans with Disabilities Act (ADA) is not subject to time limitations. In other words, a temporary impairment may qualify as a disability under Title 1 of the ADA and the regulations issued by the Equal Employment Opportunity Commission (EEOC), absent a showing of long-term effects.

Factual Background

The plaintiff, Karen Shields, worked as an HR Generalist for the defendant, Credit One Bank, N.A. (“Credit One”) in Nevada, which job description included some limited physical requirements. Approximately two months into her employment, the plaintiff learned that she would need to undergo a biopsy surgery to determine whether she had bone cancer. Although no cancer was ultimately detected, the surgery itself was significant, leaving her unable to work for several months after. Her surgeon completed Credit One’s standard medical certification form confirming the plaintiff’s inability to perform the essential functions of her job, with or without accommodations. While not yet eligible for leave under the Family Medical Leave Act (FMLA), she was granted an eight-week unpaid medical leave as an accommodation under the ADA.

Two days before she was scheduled to return to work, her doctor submitted a note confirming that she was unable to return to work as scheduled but that she had an appointment in approximately three weeks where her ability to return would be determined. After the note was received, the plaintiff was called into the office, purportedly to discuss her healthcare premium. Instead, she was informed that her position was being eliminated and her employment terminated, with healthcare coverage ending a week later.

District Court Ruling

After obtaining a “Notice of Right to Sue” from the EEOC, the plaintiff filed suit in district court for disability discrimination in violation of §102 of the ADA,[1] alleging that Credit One had a continuing duty under the ADA to reasonably accommodate her temporary disability by extending her medical leave of absence for the additional few weeks. Credit One filed a motion to dismiss for failure to state a claim upon which relief can be granted,[2] meaning, even if all the facts alleged by plaintiff were true and all inferences drawn in her favor, it would still be insufficient to support a claim.

In granting Credit One’s motion to dismiss, the district court concluded that the plaintiff failed to adequately plead a disability within the meaning of the ADA because: (1) plaintiff failed to plead facts showing “any permanent or long-term effects for her impairment” under the EEOC’s 2010 regulations defining disability; and (2) plaintiff failed to plead sufficient facts to “state a plausible impairment” during the requested medical leave extension. The plaintiff appealed.

Ninth Circuit Reversal

The Ninth Circuit Court of Appeal concluded that the district court had applied the wrong legal standard.

In granting the motion to dismiss, the district court looked at the definition of “disability” found in §3(1) of the ADA (codified at 42 U.S.C. §12102(1)), which states:

(1) The term “disability means, with respect to an individual—
(A) a physical or mental impairment that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in paragraph (3)).
(emphasis added)

Focusing on subsection (1)(A) of the definition, the district court concluded that plaintiff had failed to sufficiently allege an “impairment” and, even if she had, she failed to establish a “substantial limitation” as a result of the impairment because she did not allege facts showing any “permanent or long-term effects.”

The Ninth Circuit noted the district court’s reliance on Curley v. City of North Las Vegas[3] for this standard, which in turn relied on the EEOC’s 2010 regulations that provided for consideration of the duration and permanent or long-term impact of the impairment. It then pointed to the ADA Amendments Act of 2008 (ADAAA), which rejected such a narrow standard for “substantially limits” by adding rules of construction in §12102(4) that expressly favor broad construction of the ADA. Subsection (4)(D) states, “An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”

The ADAAA also directed the EEOC to update its regulations concerning the term “substantially limits,” which it did in 2011.[4] The 2011 regulations, along with new interpretive guidance, made clear that an impairment can be deemed substantially limiting absent a showing of “permanent or long-term effects,” and even if the effects of the impairment last, or are expected to last, fewer than six months. Although duration remains a factor to be considered, there is no categorical temporal rule.

Turning back then to the question of whether the plaintiff pleaded sufficient facts to establish a “disability” under the definition in §3(1)(A) set forth above, the Ninth Circuit concluded that, when applying the correct legal standard, she had. The district court’s order of dismissal was therefore reversed and remanded.

What Employers Need to Know

Employers need to understand the various state and federal leave laws that apply to their credit union, as well as the qualifications and parameters applicable to each. Employers should also keep in mind that the obligation to provide a reasonable accommodation under the ADA may warrant a medical leave of absence beyond those dictated by statute, and this requires a separate analysis. For California employers, the definition of a “disability” under the Fair Employment and Housing Act (FEHA) is different from the ADA definition – employers must comply with both state and federal law. And finally, employers are encouraged to speak with legal counsel before terminating, eliminating the position of, or otherwise taking any adverse action against, an employee on a leave of absence.

Article by Tom Wolfe, Managing Partner of Moore Brewer Wolfe Jones Tyler & North.

[1] See 42 U.S.C. §12112.

[2] Federal Rules of Civil Procedure Rule, 12(b)(6).

[3] Curley v. City of North Las Vegas, 772 F.3d 629 (9th Cir. 2014).

[4] See 29 CFR §1630.2(j) and Appendix to Part 1630 - Interpretive Guidance on Title I of the Americans With Disabilities Act.

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