Before moving on to today’s blog entry, I want to point out an excellent blog entry from my friend, colleague, and fellow blogger, Robin Shea. Last week, she blogged on the situation of what can happen when you have an incomprehensible drug policy that nobody understands that is not applied effectively. In short, it creates a big mess. Her blog entry is excellent and I don’t think I can add much to it, which is the reason I decided not to blog on it. The only thing I will say about the blog entry is to be sure that when you are trying to figure out whether a person can do the essential function of the job that you remember that under the ADA, the question is whether the person can do the essential functions of the job with or without reasonable accommodations. Her blog entry, which can be found here, is excellent and I commend everyone to its reading.

 

As I mentioned last week, one of the ways I find cases to blog on is from social media. In particular, I am very active on LinkedIn. This case comes to me courtesy of David Fram posting on LinkedIn. David is with the National Employment Law Institute and is a fountain of good information. Also, my friend, colleague, and fellow blogger, Eric Meyer, has an excellent blog entry on our case, here (more on that later). Our case comes from the Third Circuit and is Eshleman v. Patrick Industries, Inc. a published decision decided on May 29, 2020. The case asks the question just what does transitory and minor mean for purposes of the regarded as exception. That is, under 42 U.S.C. §12102(3)(B), a person with a condition that is both transitory and minor does not get to pursue a regarded as claim. Until this decision, there simply has not been a lot of case law at to what transitory and minor means. Beyond the regarded as situation, knowing what transitory and minor means is also helpful for trying to figure out if you have an actual disability that doesn’t last long. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning transitory and minor are two different concepts; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

 

I

Facts

 

Between October 14, 2015 and December 14, 2015, plaintiff took medical leave to undergo surgery to remove a nodule from his left lung. He told his supervisor the nodule had to be removed and tested for cancer. After two months of medical leave, plaintiff returned to working at full capacity without restrictions. However, about six weeks later, plaintiff suffered a severe respiratory infection lasting from January 27, 2016 until January 31, 2016. His supervisor approved two vacation days during that time. With his physician’s approval, plaintiff returned to working at full capacity on February 1, 2016. At the end of his shift on his second day back, defendant fired him.

 

The superintendent where plaintiff worked told plaintiff he was terminated due to performance issues. However, plaintiff reminded the superintendent that his performance review from early January 2016 had been excellent, with all 4.5’s and one 5 out of a possible five in each category evaluated. Subsequently, the superintendent claimed that plaintiff was fired because he had not called out sick during his recent leave for upper respiratory infection. Later on, plaintiff was told yet a different reason, namely that his employer was claiming that he had been fired for behavioral issues.

 

At the District Court level, the District Court granted summary judgment to the employer because it concluded that plaintiff’s disability was transitory and minor and therefore excluded under the regarded as prong. Plaintiff appealed saying that the court forgot to realize that transitory and minor were two different concepts.

 

II

Court’s Reasoning Holding That Transitory and Minor Are Two Different Concepts

 

  1. To state a claim under the ADA, a plaintiff has to show: 1) he is a person with a disability under the ADA; 2) he is otherwise qualified to perform the essential functions of the job with or without reasonable accommodations by the employer; and 3) he has suffered an otherwise adverse employment decision as a result of discrimination.
  2. A plaintiff states a regarded as claim if he establishes that he has been subjected to an action prohibited by the ADA because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.
  3. An employer regards a person as having a disability when it misinterprets information about an employee’s limitations and concludes that the employee is incapable of performing his or her job requirements.
  4. The reason the ADA includes regarded as claims is because being perceived as a person with a disability can prove just as disabling to a person as actually having a physical or mental impairment.
  5. The ADA limits regarded as claimed by excluding impairments that are transitory and minor.
  6. While the ADA defines “transitory” as an impairment with an actual or expected duration of six months or less, it doesn’t define minor.
  7. No one disputes that plaintiff pled sufficient facts to state a regarded as claim.
  8. ADA regulations at 29 C.F.R. §1630.15(f), clearly states that an employer must establish that a perceived impairment is objectively both transitory and minor. So, transitory is just one part of the two prong transitory and minor exception.
  9. The EEOC’s interpretive guidance says that transitory and minor requires a showing that the impairment is both transitory and minor, and clarifies that the six month time limit applies only to the transitory prong of the exception. In particular, the EEOC’s interpretive guidance gives an example of a person with a minor back injury lasting more than six months. The EEOC says in that example that while the injury is minor, the impairment is not transitory. So, the opposite of that must be true. That is, an impairment that is transitory because it lasts less than six months but is objectively non-minor also falls outside the transitory and minor exception.
  10. Looking at only impairments that are both transitory and minor is consistent with congressional intent to expand ADA coverage through the amendments to the ADA. As the House Judiciary Committee report on the amendments to the ADA explains, when including regarded as claims under the ADA Congress did not expect or intend this to be a difficult standard to meet. The report goes on to explain that the transitory and minor exception was intended only to weed out claims at the lowest end of the spectrum of severity, such as common ailments like the cold or the flu, and that the exception should be construed narrowly. Therefore, treating transitory and minor as separate and distinct elements is consistent with the ADA’s intent to afford broad coverage under the regarded as provision.
  11. In determining whether an impairment is minor, the district court should have considered such factors as the symptoms and severity of the impairment, the type of treatment required, the risks involved, whether any kind of surgical intervention is anticipated or necessary, and the nature and scope of any postoperative care. After all, a broken pinky finger treated with a splint is hardly comparable to removing a lung nodule by surgery. Since even minimally invasive lung surgery is still thoracic surgery, more than likely requiring inpatient care, it is plausible that the lung surgery was non-minor.
  12. Plaintiff alleges that the employer perceived his recent medical issue to signify an ongoing health condition. In particular, he alleges that it was the lung surgery combined with the severe respiratory infection, close in time ailments affecting the same system of the body, that led his employer to perceive him as a person with a disability.
  13. Plaintiff’s complaint contains plausible allegation that his employer regarded his series of recent medically related absences as signs of a continuing medical condition rendering him damaged goods and therefore unemployable.
  14. In a footnote, the court noted that expert testimony is not needed to appreciate that a very serious medical condition may require only a single surgical procedure.
  15. Cases cited by the employer are not persuasive because those cases fail to make distinct findings about whether the impairment is both transitory and minor. On the other hand, the Seventh Circuit in Silk v. Board of Trustees, Moraine Valley Community College specifically stated that the ADA defines transitory but left minor undefined. They then concluded that a particular disability, in that case a heart condition severe enough to require triple bypass surgery, could not be said to be both transitory and minor. So, the Seventh Circuit treated transitory and minor as separate and distinct inquiries with respect to the regarded as exception.

 

III

Thoughts/Takeaways

 

  1. The Seventh Circuit doesn’t have a great track record with respect to favoring persons with disabilities of late. However, there are two exceptions. First, the Seventh Circuit view is that for a person unable to perform the essential functions of their current job, the employer is under a mandatory obligation to reassign them to a vacant job that they are otherwise qualified to do. Second, when it comes to regarded as claims, the Seventh Circuit says that the physical or mental impairment must be both transitory and minor for the exception to apply.
  2. I really wish the amendments to the ADA stayed with the Rehabilitation Act term “otherwise qualified,” instead of the term it adopted, “qualified.” Instinctively, “qualified,” has more complexity in its meaning, unnecessarily so, then the concept, “otherwise qualified.”
  3. Until this case, we simply didn’t know what minor might mean for purposes of the transitory and minor exception. At a minimum, it means looking at: 1) the symptoms and severity of the impairment; 2) the type of treatment required; 3) the risk involved; 4) the kind of surgical intervention anticipated or necessary; and 5) the nature and scope of any postoperative care. Keep in mind, before listing these particular things to look at, the Third Circuit says, “the district court should have considered such factors as….” That means, these factors are not necessarily exclusive. So, you also want to use common sense when figuring out whether the physical or mental impairment is minor.
  4. My friend and colleague and fellow blogger, Eric Meyer, blogged on this case today as well, here. It is an excellent blog entry, and I commend it to your reading. He makes a couple of points that I completely agree with that bear noting here. First, actual disability isn’t the only thing going on with respect to how you can be a person with a disability. There are two other prongs. You could have a record of a disability regardless of whether you currently have it. You also, which is the subject of our blog entry today, could be regarded as having a disability. Second, I completely agree with Eric that Covid-19 is not minor. So, even if a person has recovered, a strong argument exist that the person has a record of a disability. Furthermore, many people who have Covid-19 recover but wind up with other conditions afterwards. Those conditions may be a disability as well. Third, I completely agree with Eric that if a person has Covid-19 you very well may have a duty to accommodate it as an actual disability.
  5. The EEOC has said that an actual disability could very well be something less than six months. I have said for some time that one way to figure out whether an actual disability is in play for something less than six months would be to borrow from the transitory and minor exception of the regarded as prong. There isn’t anything that says you should do that, but I do think it is good preventive law. So, now we have an idea of what is minor under the regarded as exception. Applying this case definition of minor to Covid-19 leads to the inescapable conclusion that Covid-19 may be transitory but it is certainly not minor. So, on the preventive law side, a person with Covid-19 probably has an actual disability. You also have to worry about the regarded as prong as we discussed here.
  6. Don’t forget about associational discrimination. While a person complaining of associational discrimination is not entitled to reasonable accommodations, they sort of are entitled to at least having an accommodation considered because courts are saying that a failure to engage in the interactive process with respect to association discrimination situations reflects on the employer’s intent to discriminate based upon the plaintiff’s association with a person with a disability. So, while there is no reasonable accommodation requirement with respect to accommodating someone who associates with the person with the disability, that is only as a matter of theory. In practice, failure to try and figure out how to get to a win-win my still come back to bite you.
  7. The transitory and minor exception is an objective standard. Prior to the amendments act, it was basically a subjective standard when it came figuring out whether an employer had perceived both a physical and mental impairment and a substantial limitation on a major life activity. The amendments changed all of that. Also, this case says that the objective standard doesn’t always require expert testimony either. Sometimes it is just obvious that a physical or mental impairment is not minor.
  8. Employers should not expect the transitory and minor exception to be something that is used successfully in the run of cases in light of the language in the case talking about how the exception was meant to only weed out claims at the lowest end of the spectrum.
  9. Employers who change their termination reason over time never look good.
  10. Title I causation is “on the basis of” not “because of,” as we have discussed many times previously. Yet, many courts fail to make that distinction.
  11. An underlying issue in all of this is whether attendance is an essential function of the job, such as we discussed here. What Covid-19 has done is create a real issue of whether attendance is a personal preference or an essential function. After all, Twitter’s CEO said this week that any of his employees from now on can work from home if they so desire. Facebook wants to move to 50% remote workers over time. I expect other companies to follow suit for a whole host of reasons.
  12. The decision is published and precedent-setting. I fully expect the decision to be cited frequently by other courts.

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