Break a Leg! Temporary
Impairments May be a
Disability under ADA
Imagine your employee, Johnny, breaks his leg
playing on a Weekend Warriors Softball Team.
At first, he says he will need six weeks off, which is
available under your medical leave policy. Johnny
expects a full recovery. However, at the end of six
weeks, Johnny says he needs another two weeks off
as a “reasonable accommodation” because of the continuing
effects of his disability. It turns out Johnny
believes his temporary impairment is a disability for
which an accommodation should be considered. But
if he is going to be fine after a moderate recovery
period, is that really a disability? According to
the U.S. Court of Appeals for the Fourth Circuit,
employers need to evaluate such temporary impairments
in the same manner as they would a permanent
impairment under the Americans with
Disabilities Act, as amended by the Americans with
Disabilities Act Amendments Act (“ADAAA”).
Five years after the ADAAA took effect in January
2009, the Fourth Circuit is the first federal appeals
court to apply the ADAAA’s expanded definition
of disability to include temporary impairments.
Summers v. Altarum Institute, 740 F.3d 325
(4th Cir. 2014). The Fourth Circuit has jurisdiction
over Maryland, North Carolina, South Carolina,
Virginia, and West Virginia.
The ADAAA makes it significantly easier for a
plaintiff to establish he or she is disabled under the
Americans with Disabilities Act (“ADA”). While the
ADAAA retains the ADA’s definition of “disability”
as a substantial limitation of a major life activity, it
stipulates the word “shall be construed in favor of
broad coverage of individuals . . . to the maximum
extent permitted by the terms of [the ADA.]” In
addition, the ADAAA makes clear that “[a]n impairment
that is episodic or in remission is a disability
if it would substantially limit a major life activity
when active.” The Equal Employment Opportunity
Commission’s ADAAA regulations also expressly
provide that the “effects of an impairment lasting or
expecting to last fewer than six months can be substantially
limiting for purposes of proving an actual
disability.” To illustrate, the regulations explain that
“if an individual has a back impairment that results
in a 20-pound lifting restriction that lasts for several
months, he is substantially limited in the major life
activity of lifting, and therefore covered [as having an
In Summers, the Fourth Circuit ruled that plaintiff
Carl Summers stated facts sufficient to allege a disability,
including that his doctors forbade him from
putting any weight on his left leg for six weeks and
estimated he would not be able to walk normally
for at least seven months. Summers, a senior analyst
for an Alexandria, Virginia, government contractor
working at a client’s location in Maryland, fell and
injured himself while exiting a commuter train on
his way to the client’s offices on October 17, 2011.
He contacted his employer’s human resources
representative about short-term disability benefits
and working from home. The representative agreed
to discuss accommodations, but suggested that
Summers “take short-term disability and focus on
getting well again.” The employer’s insurance
provider granted Summers short-term disability
benefits. Summers’s supervisors did not return his
inquiries about how he might return to work nor
did they suggest any alternative reasonable accommodation.
Instead, Summers was told that effective
December 1, 2011, he is terminated “in order to
place another analyst in his role….”
Summers sued the employer alleging he was discriminated
against and not provided a reasonable
accommodation in violation of the ADA. The district
court dismissed the case, ruling Summers was
not a qualified person with a disability because he
suffered from a temporary condition that does “not
fall within the purview of the Act.” The appellate
court reversed, finding the ADAAA’s expanded definition
of disability includes temporary impairments.
The Court also rejected the employer’s argument
that the EEOC’s regulations mandated different
treatment for claims arising from temporary impairments
caused by injuries, as opposed to those caused
by permanent injury. The Court found that shortterm
impairments qualify as disabilities if they are
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New Model COBRA
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Break a Leg! Temporary
Impairments May be a
Disability under ADA
Continued on next page
Until further guidance is provided from the courts,
employers must evaluate all requests for time off due
to medical reasons, or other accommodations
requests, in accordance with ADA requirements. For
more information on this decision, please contact
Ted N. Kazaglis, at firstname.lastname@example.org.
Ted N. Kazaglis, Esq.
Andreas N. Satterfield, Esq.
Roger S. Kaplan, Esq.
Mei Fung So, Esq.
This update is provided for informational
purposes only. It is not
intended as legal advice nor does it
create an attorney/client relationship
between Jackson Lewis P.C.
and any readers or recipients.
Readers should consult counsel of
their own choosing to discuss how
these matters relate to their individual
in whole or in part is prohibited
without the express written consent
of Jackson Lewis P.C.
This update may be considered
attorney advertising in some
states. Furthermore, prior results
do not guarantee a similar
Jackson Lewis P.C. represents management
exclusively in workplace
law and related litigation. Our
attorneys are available to assist
employers in their compliance
efforts and to represent employers
in matters before state and federal
courts and administrative agencies.
For more information, please
contact the attorney(s) listed or
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whom you regularly work.
© 2014 Jackson Lewis P.C.
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Stephanie E. Lewis,
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Richard S. McAtee,
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The Department of Labor has published a new
model general COBRA notice and a new model
election COBRA notice. The new model notices
reflect that coverage is available in the public health
insurance exchanges, i.e., the “Marketplace,” and
include information on special enrollment rights in
the Marketplace. Use of these model notices, properly
completed, will be considered good faith compliance
with the notice content requirements of
COBRA. The new notices may be obtained on the
Department of Labor website (http://www.dol.gov/
Employers should utilize the new revised model
notices on the Department of Labor website to
ensure good faith compliance with applicable
New Model COBRA Notices Should be Used by Employers
According to the 2012 National Survey on Drug
Use and Health, 23.9 million Americans are
illicit drug users. The government also reports that
66.6 percent of illicit drug users are full- or parttime
employees who cost U.S. businesses $120 billion
annually because of drug abuse and alcoholism.
Moreover, as many states consider legislation to
legalize marijuana use not only for medicinal purposes,
but for recreational purposes (permitted in
Colorado and Washington), it is no wonder employers
use drug testing programs for employees and
new hires to attempt to combat drug use in the
The purpose of such programs is to promote deterrence,
foster detection, reduce the costs of substance
abuse in the workplace and minimize legal vulnerability.
Reliable testing procedures play an important
part of any drug testing program.
In North Carolina, employers’ testing programs are
regulated by the Controlled Substance Examination
Regulation Act (NCGS Section 95-230, et seq.).
Although the Act does not require employers to
conduct controlled substance testing in the workplace,
it establishes procedures for employers or
employer representatives who perform employmentrelated
The statute requires that samples be collected in a
manner reasonably calculated to prevent substitution
and interference with the collection, examination
or screening of samples. Samples for prospective
or current employees may be collected on-site or
at an approved laboratory. NCGS Section 95-232.
However, the screening of samples for current
employees can be performed only by an approved
laboratory. An approved laboratory is defined as a
clinical chemistry laboratory that performs controlled
substances testing and has demonstrated
satisfactory performance in the forensic urine drug
testing programs of the U.S. Department of Health
and Human Services or the College of American
Pathologists for the type of tests and controlled
substances being evaluated. NCGS Section 95-231.
In addition, the Act provides that specific notices be
given to employees prior to testing. Specific notices
also are required if a positive test results. (Sample
notices can be found at http://www.nclabor.com/wh/
Employers in North Carolina that fail to use an
approved laboratory or follow the Act’s other
requirements run the risk that any adverse employment
action taken as a result of such testing would
be deemed invalid and the employer be subject to
the Act’s civil penalties.
Drug use in the workplace continues to affect
productivity and cost employers billions. The Act’s
requirements are not difficult, but they are not
widely known. Discuss these requirements with
your collection agent and laboratory to confirm they
are familiar with and are abiding by the requirements.
Otherwise, any decisions made based on
invalid tests may be unenforceable.
The Jackson Lewis Drug Testing and Substance
Abuse Management practice assists employers
with the legal issues and requirements imposed
by federal, state and local laws and regulations.
For more information or assistance with the North
Carolina Controlled Substance Examination
Regulation Act, please contact Ted N. Kazaglis,
Don’t Overlook North Carolina Controlled Substance Act
Additional Information on COBRA,
The Department of Labor provides additional guidance
on COBRA in a series of FAQs published on
its website (http://www.dol.gov/ebsa/compliance_
assistance.html). The FAQs address, among other
things, COBRA and insurance obtained through the
Marketplace. They suggest that individuals who
become entitled to COBRA consider other options
before electing COBRA coverage.
These FAQs may be useful for employers and
employees regarding COBRA and COBRA alternatives.
Employers should consider amending other
materials addressing the company health plan and
COBRA, such as employee handbooks, company
policy manuals and summary plan descriptions to
maximize employee understanding of the
Moreover, employees and employers should take
note of the fact that an election of COBRA coverage
generally provides health plan coverage retroactive
to the date that coverage as an active employee
ceased. However, an election of health plan coverage
under a Marketplace plan generally will be prospective
Employers should be proactive in communicating
with employees about the new Marketplace alternatives
to COBRA coverage. Although employees
eventually may move away from electing COBRA
coverage following termination as a result of coverage
available on the Marketplace, there are still traps
for the unwary in making decisions regarding postemployment
Special Enrollment Period
There is a special enrollment period for health plans
in the Marketplace available to persons eligible for
• such persons initially are eligible for COBRA due
to a loss of other minimum essential coverage; and
• such persons’ COBRA coverage is exhausted.
COBRA beneficiaries are also permitted to choose
health plans in the Marketplace during the annual
open enrollment period and if they are determined
eligible for any other special enrollment periods
outside of the open enrollment period.
As a result of Department of Health and Human
Services (“HHS”) concern that the model COBRA
notices previously available did not adequately
address Marketplace options for persons eligible
for COBRA and COBRA beneficiaries, a Centers
for Medicare & Medicaid Services (“CMS”) bulletin,
“Special Enrollment Periods and Hardship
Exemptions for Persons Meeting Certain Criteria,”
has been issued
5-1-2014.pdf). HHS has provided an additional
special enrollment period for these individuals based
on exceptional circumstances, so that persons eligible
for COBRA and COBRA beneficiaries may
select a health plan in the federal Marketplace
(assuming eligibility for such coverage) even though
they previously elected COBRA coverage. Affected
individuals have through July 1, 2014, to select a
health plan in the federal Marketplace.
Employers may want to reach out to affected
individuals to make them aware of this special
For more information on changes involving
COBRA or any other employee benefits matter,
please contact Shareholder Joy Napier-Joyce, at
Joy.NapierJoyce@jacksonlewis.com, or Of Counsel
Melissa Ostrower, at OstrowerM@jacksonlewis.com.
Superior Client Service
Jackson Lewis P.C. is honored to have earned a spot
on the BTI Power Elite in the BTI Consulting
Group’s 2014 Client Relationship Scorecard report as
one of the top law firms in building and maintaining
Firm Chairman Vincent A. Cino said, “This truly
reflects our attorneys’ hard work and dedication to
developing and strengthening their client relationships,
and it is gratifying to know the companies we
work with recognize and value this commitment.”
The BTI Consulting Group’s 2014 Client
Relationship Scorecard report shows that Jackson
Lewis, in building and maintaining client relationships,
outperformed more than 95 percent of the
market serving large corporate clients. BTI’s report
is based on interviews with more than 500 general
counsel and chief legal officers or their direct reports
that gauge a firm’s ability to establish long-term
relationships with clients, the clients’ vote of confidence
and enthusiastic recommendations to their
peers, and a firm’s superior levels of client satisfaction,
among other factors.
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Jackson Lewis P.C. represents management
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The firm has more than 770 attorneys practicing in
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12th Annual Jackson Lewis
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September 17 - 19, 2014
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The program is an excellent way to satisfy
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