Employers Must Consider Whether Temporary Impairments Are Disabilities

Sponsored content by Stoel Rives LLP originally published by the Portland Business Journal on June 7, 2022.

What qualifies as a disability for employees got even more complicated in recent weeks. The U.S. Court of Appeals for the Ninth Circuit ruled on May 6, 2022, that “temporary impairments”—things like recovery from surgery and broken bones—may qualify as “disabilities” under the Americans with Disabilities Act (“ADA”). The court’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.

Case summary – Shields v. Credit One Bank, N.A.

In 2018, Karen Shields underwent biopsy surgery. The biopsy revealed that Shields did not have cancer, but she had several post-surgery limitations, including limited use of her right arm that kept her from typing and writing. Shields worked in human resources for Credit One Bank at the time, but the issues with her arm precluded her from doing her job. Credit One 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.

Credit One argued 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 trial court agreed and dismissed Shields’ claim, but the Ninth Circuit sided with Shields and reversed.

Disability definition

The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities,” but it does not say how long those limitations must persist to qualify as a disability. However, the Equal Employment Opportunity Commission (“EEOC”), the federal agency with authority to interpret and enforce the ADA, has issued regulations clarifying that “the effects of an impairment lasting or expected to last fewer than six months can be substantially limiting,” and therefore qualify as a disability. The EEOC has also said that if, for example, 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 trial 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 qualifying disability.

Significance for employers

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, it is still unclear if there is any minimum duration an impairment must last in order to qualify as a disability. The Ninth Circuit found that Shields suffered an “impairment” under the ADA by virtue of the surgery itself. There are few surgeries that do not incapacitate a patient in some way for a period of time, leaving it unclear whether an employee who undergoes surgery will necessarily be “disabled” in the immediate period that follows. It is also unclear whether an employer’s obligation to provide reasonable accommodation differs based on the temporary or short-term nature of the impairment.

The Ninth Circuit’s decision may have created more questions than answers, and it certainly sets the bar higher for employers. This is true not only because of the outcome in Shields, but also 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, while the definition of “disability” under Oregon law is somewhat ambiguous, Washington’s state disability law expressly includes “temporary” impairments within the definition of “disability.” With that in mind, employers would be best served by focusing 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. Employers should utilize the required interactive process to evaluate whether an accommodation is reasonable under the circumstances and be sure to document the process and ultimate decision.

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