January 31, 2014

When is a temporary disability covered by the ADA?

Posted in Employment Law by Gene Killian |

The Oscars will be here pretty soon, and you may hear a lot of people (like me) complain that Hollywood just doesn’t make movies like it used to. The other night, I watched “Mr. Smith Goes to Washington,” the iconic Frank Capra movie from 1939, starring Jimmy Stewart. In the movie’s climactic scene, Jefferson Smith gives his impassioned speech from the floor of the Senate, and says: “I wouldn’t give you two cents for all your fancy rules if, behind them, they didn’t have a little bit of plain, ordinary, everyday kindness, and a little looking out for the other fella, too.”

I think that many unnecessary employment cases (like many insurance coverage cases) result because of a failure to “look out for the other fella.” Consider a recent case decided by the Fourth Circuit, Summers v. Altarum Institute. The case involved a senior analyst (Summers) for a government contractor. Summers’ job consisted of conducting statistical research, writing reports, and making presentations. One day, while on his way to work, Summers fell while leaving the train, and violently struck both of his legs against the train platform. He broke his left leg and tore the meniscus tendon in his left knee. He also broke his right ankle and ruptured tendons in his right leg. Repairing the injuries required surgery, metal plates, screws, and bone transplants. The doctors forbade Summers from putting any weight on his left leg for six weeks, and estimated that he wouldn’t be able to walk normally for seven months at the earliest.

Summers offered to work remotely from home while he was healing.  The HR Department told him that the company would discuss such an arrangement, but suggested that Summers go on temporary disability and focus on getting well again. Two months later, though, while he was still recuperating, Altarum fired him, simply telling him it was doing so “in order to place another analyst in his role.”

Summers sued under the ADA, arguing that he was wrongfully discharged because of a disability.  Altarum defended on the ground that a temporary condition doesn’t fall within the coverage of the Act. The trial judge bought that argument - but the Appellate Court didn’t.

The Fourth Circuit first noted that Congress had specifically overturned prior Supreme Court precedent on the question of whether temporary disabilities were covered by the ADA, and that Congress had directed the EEOC to adopt new regulations making clear that such disabilities were in fact covered. The EEOC responded with a regulation specifically stating that “effects of an impairment lasting or expected to last fewer than six months can be substantially limiting” for purposes of proving actual disability.

The Court then ruled in Summers’ favor, writing: “Summers alleges that his accident left him unable to walk for seven months and that without surgery, pain medication, and physical therapy, he ‘likely’ would have been unable to walk for far longer. The text and purpose of the [ADA] make clear that such an impairment can constitute a disability.… The [trial court] reasoned that, because Summers could have worked with a wheelchair, he must not have been disabled. This inverts the appropriate inquiry. A court must first establish whether a plaintiff is disabled by determining whether he suffers from a substantially limiting impairment…If the fact that a person could work with the help of a wheelchair meant that he was not disabled under the Act, the ADA would be eviscerated.”

The Court also held that the employer had an affirmative duty to engage in an “interactive process” with the employee, in an effort to arrive at a suitable accommodation.

Lesson:  Yes, some employees are malingerers, and yes, there are some people who have an “entitlement” mentality and will try to take advantage of your company.  But if all you have is a hammer, everything starts to look like a nail. How much time and money did the company spend litigating the ADA issue against an employee with a broken leg and a broken ankle? What message did the company’s treatment of Summers send to other Altarum employees or job applicants?  When dealing with human resources issues, which are really human relations issues, “act like you got some sense.”

- Gene Killian