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How Temporary Is Temporary Under The ADA?


By: 
Date: October 27 2003

Contributed by the attorneys who write Rhode Island Employment Law Letter Powers, Kinder & Keeney.

By now, everyone knows that an employer can''t fire an employee because she''s disabled. Most employers (but not many employees or their attorneys) even know when an impairment becomes a disability under the Americans with Disabilities Act (ADA). But what about a disabling impairment that lasts only a short time? As a Maryland employee discovered, time is most definitely a factor in determining whether a disability is an ADA disability.

Oh my aching back

Mary Pollard began working as a store clerk for High''s of Baltimore, which operates a number of convenience stores in the Baltimore area, in 1985. After 12 years, she had worked her way up the ladder and eventually became an area supervisor. In that role, she monitored 10 to 15 stores and occasionally filled in for absent store managers and clerks. The job entailed a large amount of driving and typically took more than 40 hours per week. For that, she received an annual salary of approximately $40,000.

Things were going well until August 1997, when Pollard suffered an on-the-job back injury. At that point, her climb up the corporate ladder ended, and her journey to this newsletter began.

After a brief absence, Pollard returned to work, but her symptoms didn''t improve. In December 1997, her doctor recommended back surgery, which was done the following month. Before surgery, the employee filed a claim for compensation with the Maryland Workers'' Compensation Commission. Unfortunately for her, she suffered a postoperative infection and was out of work until April 1998, when she was cleared to return to work under a significant set of restrictions (no more than eight hours of work per day, no extensive driving, and a five-pound lifting limit). The restrictions effectively prevented her from performing her duties as an area supervisor, and she was told to stay home.

Throughout the summer of 1998, Pollard was in regular contact with her superiors and the medical providers appointed through workers'' comp. Despite her protest, she wasn''t cleared to return to work. By September, however, her doctor had removed the no-driving restriction and increased her lifting limit to 25 pounds. But the eight-hour-workday limitation remained. On September 23, 1998, she returned to work - but as a $5.60 per hour clerk. There was some dispute over how she arrived at that position and whether the workers'' comp carrier should have compensated her for the loss of income. Thankfully for you, however, we can skip over those mindless minutiae.

Despite efforts to accommodate Pollard''s physical limitations, she couldn''t perform her duties as a clerk and rarely finished a full eight-hour day. Nevertheless, less than a week after returning to work, her doctor lifted the eight-hour restriction. The employee greeted that news with great relief and immediately asked to be reassigned to her old area supervisor''s job. High''s operations manager, however, refused to allow her to resume her old duties until she demonstrated that she could work a full day as a store clerk.

Pollard continued to work as a clerk for about a month but then quit to go to work at a car dealership. She then drove her new car to the courthouse, claiming that High''s fired her in violation of the ADA. The court, however, quickly applied the brakes to her suit.

Oh just suck it up

The first question that must be addressed in an ADA case is whether the employee is disabled. An ADA disability is a physical or mental impairment that substantially limits a major life activity. In this case, Pollard claimed that she was substantially limited in the major life activity of working. To determine whether a life activity is substantially limited, courts look to the impairment''s (1) nature and severity, (2) duration or expected duration, and (3) permanence or long-term duration.

Given those factors, the court concluded that temporary impairments generally won''t qualify as an ADA disability. As the court went on to note, however, there are no simple rules in ADA cases. Even temporary impairments must be considered on a case-by-case basis, and some "temporary" impairments on further review might not be so temporary after all.

In Pollard''s case, the court found that a nine-month recovery period was indeed a temporary disability. The court repeatedly noted that there was no indication that Pollard''s impairments were anything but a temporary inconvenience resulting from surgery. Indeed, both she and her doctor repeatedly informed High''s that she was expected to make a full recovery and return to her full-time duties as an area supervisor. Plus, she was able to obtain full-time employment immediately after being discharged.

As a result, the court concluded that Pollard wasn''t disabled within the meaning of the ADA. To rule otherwise would expand the Act well beyond the scope contemplated by Congress when it enacted the law. Pollard v. High''s of Baltimore, Inc., 281 F.3d 462 (4th Cir.).

Time matters

As a general rule, a temporary impairment that has disabling effects isn''t an ADA disability. But remember, there''s no such thing as a truly general rule when you''re considering ADA issues. Each potential disability must be considered on an individual basis.

Copyright 2003 M. Lee Smith Publishers LLC. This article is an excerpt from RHODE ISLAND EMPLOYMENT LAW LETTER. RHODE ISLAND EMPLOYMENT LAW LETTER does not attempt to offer solutions to specific problems, but rather to provide information about current developments in Rhode Island and federal employment law. Inquiries about specific problems should be addressed to the labor or employment law attorney of your choice. Rhode Island does not certify lawyers as specialists in labor and employment law or other areas of concentration.



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