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Summers v. Altarum Institute, Corp., No. 13-1645 (4th Cir. Jan. 23, 2014)

As the U.S. Courts of Appeals finally begin to decide disabilities cases governed by the ADA Amendments Act of 2008 (ADAAA), we'll begin to see transformational decisions like this one. Contrary to prior case law, the Fourth Circuit holds that an employee's temporary condition - here, "broken legs and injured tendons [that] render him completely immobile for more than seven months" - may constitute a disability.

Summers v. Altarum Institute, Corp., No. 13-1645 (4th Cir. Jan. 23, 2014): In this case, Summers - a senior analyst for a government contractor - requested permission to work remotely while he healed from an accident in 2011 that left him incapacitated, with fractures in both legs. "Doctors forbade Summers from putting any weight on his left leg for six weeks and estimated that he would not be able to walk normally for seven months at the earliest." company policy authorized employees to work remotely if the client approved. At the time of his accident, Summers was working with Defense Centers of Excellence for Psychological Health and Traumatic Brain Injury (DCoE).

"Summers sent emails to his supervisors at Altarum and DCoE seeking advice about how to return to work; he suggested 'a plan in which he would take short-term disability for a few weeks, then start working remotely part-time, and then increase his hours gradually until he was full-time again.'" While the employer's short-term disability provider granted Summers benefits, the company refused to engage him in negotiations about working from home. Instead effective December 1, 2011, it fired him "in order to place another analyst in his role at DCoE."

Summers filed an ADA discrimination claim for his discharge. Altarum argued successfully in the district court that Summers was not a "qualified person with a disability" because - while he was physically impaired - a "temporary condition, even up to a year, does not fall within the purview of the [A]ct" and so "the defendant's not disabled."

The Fourth Circuit reverses. In September 2008, Congress broadened the definition of "disability" by enacting the ADAAA. The panel recognizes that the ADAAA specifically abrogated Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002), which suggested that a temporary impairment could not qualify as a disability under the ADA. The panel notes that the EEOC issued notice-and-comment regulations that provide that "effects of an impairment lasting or expected to last fewer than six months can be substantially limiting" for purposes of proving an actual disability, if they are "sufficiently severe." 29 C.F.R. § 1630.2(j)(1)(ix).

The panel observes that the shift from Toyota Motors to the ADAAA requires retooling from the preexisting case law:

"We are the first appellate court to apply the amendment's expanded definition of 'disability.' Fortunately, the absence of appellate precedent presents no difficulty in this case: Summers has unquestionably alleged a 'disability' under the ADAAA sufficiently plausible to survive a Rule 12(b)(6) motion."

*    *    *    *

"Although short-term impairments qualify as disabilities only if they are 'sufficiently severe,' id. § 1630.2(j)(1)(ix) (app.), it seems clear that the serious impairment alleged by Summers is severe enough to qualify. If, as the EEOC has concluded, a person who cannot lift more than twenty pounds for 'several months' is sufficiently impaired to be disabled within the meaning of the amended Act, id., then surely a person whose broken legs and injured tendons render him completely immobile for more than seven months is also disabled."

The panel rejects the employer's challenge to the EEOC's regulation, granting in Chevron deference. It also holds that the district court erred in finding that the employee was not disabled if he could have worked from a wheelchair. "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. Only then may a court ask whether the plaintiff is capable of working with or without an accommodation. [Citing 42 U.S.C. § 12102(4)(E)(i)(III).]"

Lawyers and HR professionals who had become used to the prevailing rule that temporary disabilities were not protected under the ADA must, like the courts, adjust to Congress's progressive reforms

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