ADA Regarded-As Claims

by Cheri Vandergrift, Managing Attorney

Americans with Disabilities Act,  Bulletin

The Americans with Disabilities Act (ADA) is a multi-faceted, complex law. The “regarded-as” concept is the height of complexity. When may an employer be liable for “regarding” an individual as having a disability?

The ADA prohibits treating disabled employees less favorably than non-disabled employees in any term or condition of employment. Regarded-as liability occurs when the employer takes prohibited action because of either an actual impairment or a perceived impairment, with an exception: If the employer can show that the actual or perceived impairment is both transitory (lasts or expected to last six months or less) and minor, then it should not be liable for “regarding” an employee as disabled. As a cautionary note, do not confuse this defense with the definition of “disability” for actual impairment under the ADA. If short-term impairments are sufficiently severe, in other words, transitory but not minor, the individual may be covered for having an actual impairment.

In a 2016 case from Arizona, April Rue suffered an off-duty fractured ankle two weeks after being hired. Rue v. Hickman’s Egg Ranch, Inc. (D. Ariz. 2016.) Although her ankle was healing progressively during her two-month leave of absence for treatment, she never returned to work and was separated from employment. Rue claimed that the employer’s termination was illegal under the ADA. When the court reviewed the facts, it noted that Rue’s ankle was healing progressively and that she no longer sought treatment after two months. Looking at a broken ankle objectively, the court determined that the injury was transitory and relatively minor. Thus, Rue’s “temporary injury with minimal residual effects [could not] be the basis for a sustainable claim under the ADA.”

Conversely, Ivory Nutall, a heavy-equipment maintenance mechanic, suffered a severe injury when his back gave out after lifting the hood of a large crane. Nutall v. Reserve Marine Terminals (N.D. Ill. 2015). He was helped off the crane and immediately went to the emergency room. Nutall received multiple spinal injections, underwent physical therapy, wore a neck-to-waist brace for 23 hours a day, and ultimately had lumbar laminectomy surgery.

After surgery, Nutall continued to provide status updates to the company and was ultimately released to full duty without restriction by his back surgeon approximately two years after his injury.

Nutall presented the company with his return to work certificate. However, the company’s workers’ compensation point of contact, Dennis Stropko, was “concerned” that Nutall could not perform “100 percent of the essential functions” of his job, and was “extremely hesitant” to allow Nutall to return to work. He later labeled Nutall’s workers’ compensation claim as of a “questionable nature,” and informed the carrier that Nutall had a long history of chronic back problems (which was untrue).

The court found there was evidence that the employer regarded Nutall as disabled and refused to dismiss the case, pointing, in part, to Stropko’s false statements about Nutall’s back condition.

Returning to the regarded-as definition, did the employer here take action prohibited by the ADA based on an actual or perceived impairment that was not transitory and minor?

The employer refused to reinstate Nutall, despite medical information that he could return to work without restriction. That is tantamount to refusing to hire and/or failing to reinstate after an ADA leave of absence. Was that action based on an actual or perceived impairment that was not both transitory and minor? Here, the condition lasted approximately two years, so it was not transitory and was clearly not minor.

It is important to make employment decisions based on current medical information and not on beliefs that may contradict the certification. Failing to reinstate employees after an injury contrary to medical information could lead to liability under the regarded-as prong of the ADA. When questions arise, contact MSEC for assistance.

About the author
Cheri Vandergrift, Managing Attorney

In addition to managing the legal compliance training function, Cheri counsels and trains Employers Council members on a variety of legal compliance topics. She has particular expertise in the Americans With Disabilities Act, the Family and Medical Leave Act, and Title VII of the Civil Rights Act of 1964. Cheri handles issues involving pregnancy discrimination, workplace accommodation, leave issues, charges of discrimination, and legal compliance under both state and federal wage and hour laws.