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You May be Required to Accommodate Temporarily Disabled Employees Under the ADA

Recently, the Fourth Circuit Court of Appeals became the first appellate court to hold that an employee with a temporary impairment is protected under the Americans with Disabilities Act (“ADA”), as amended, if the impairment is “sufficiently severe” to substantially limit a major life activity. Thus, for some temporarily-disabled employees, employers must now consider whether reasonable accommodations exist that would allow that employee to perform the essential functions of the job.

In Summers v. Altarum Institute, Corp., Carl Summers, who worked as a senior analyst for government contractor Altarum Institute, fell and injured himself while exiting a commuter train on his way to work. Doctors determined that he had sustained serious injuries to both legs, which required surgery to repair. 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 at least seven months.

While on leave following his accident, Summers sent emails to his supervisors seeking advice about how to return to work, and suggesting “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.” Summers acknowledged that the contractor for whom he worked preferred contractors to work on-site during business hours, but permitted contractors to work remotely from home when putting in extra time on a project.

Summers alleged that Altarum never followed up on his request to discuss how he might successfully return to work. Instead, a little more than a month after his accident, Altarum terminated him “in order to place another analyst in his role.” Summers alleged that Altarum terminated his employment based on his disability (i.e., his limited ability to walk) and failed to accommodate his disability, both in violation of the ADA. The federal district court dismissed the case.

On appeal, the Fourth Circuit reversed. The Fourth Circuit upheld the EEOC’s interpretation of the amended ADA to include within the statutory protections certain employees who are temporarily limited in the performance of a major life activity, even if the limitation is expected to last fewer than six months. This means that absent a showing of undue hardship, employers are obligated to accommodate employees with a substantially limiting impairment, regardless of the duration, if the accommodation would assist the employee in performing the essential functions of the job.

As a practical matter, most employers are probably already accommodating temporarily disabled employees either by providing time off to recover from an injury through the use of accrued sick leave and/or leave under the Family and Medical Leave Act (FMLA), or by providing light-duty or a temporary modification or alteration of job duties. After Summers, however, these accommodations may now be required by the ADA, as long as the accommodation is deemed reasonable. The failure to provide such accommodations may result in employer liability under the ADA.

As courts continue to chip away at employers’ right to govern their workforce, it is imperative that employers stay informed about their obligations under the ADA. Before taking any adverse employment action against an employee who may be protected under the ADA, employers must conduct a full, complete, and proper analysis of the situation to determine first, whether the employee is covered under the ADA and if so, whether a reasonable accommodation exists that would assist the employee in performing the essential functions of the job.

If you have questions or concerns about employers’ obligations under the ADA, please respond to this email or contact your Elarbee Thompson attorney.

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