At our recent Safeguarding Employers in 2014 seminar, we updated employers regarding how courts are applying The ADA Amendments Act of 2008 (ADAAA) to temporary or transitory impairments. The observed trend among courts decisions is toward determining that temporary impairments are covered ADA disabilities.

The ADAAA became effective on January 1, 2009, with the express purpose of reinstating a broad scope of protection. While prior to the ADAAA temporary, non-chronic impairments were generally not considered disabilities, courts are now holding otherwise.

These decisions often cite the Equal Employment Opportunity Commission (EEOC) interpretive regulations, which were issued in 2011. Those regulations and the Appendix accompanying them state that impairments that last only a short period of time – particularly less than six months – may be covered disabilities if sufficiently severe.

In Summers v. Altarum Institute, the 4th Circuit became the first federal Court of Appeals to address this issue. 740 F.3d 325 (4th Cir. 2014). The employee had fallen at a train station on the way to work and severely, but temporarily, impaired both of his legs. The District Court granted the employer’s motion to dismiss, reasoning that the employee was not disabled under the ADA because his condition was only temporary. The Court of Appeals reversed and determined that the employee had set forth a covered disability.

Since the ADAAA became effective, other types of temporary impairments that courts have found may constitute covered ADA disabilities include hernias, vision problems, broken ankles, herniated discs, and pregnancy complications.

Takeaway: Employers should be aware that temporary or transitory impairments can constitute ADA covered disabilities. Accordingly, employees with temporary impairments may be entitled to reasonable accommodations to address their situations, including a possible leave of absence beyond any available FMLA leave.