A Temporary Disability Can be a Protected ADA Disability and Other Stuff

I hope everyone’s new year is off to a fabulous start. Congratulations to Ohio State for winning the NCAA FBS championship.

Today’s blog entry deals with whether a temporary disability can be a disability under the ADA. The answer is most certainly yes. There is also some other good stuff to cover as well from the opinion. The case of the day is Sutherland v. Peterson’s Oil Service, Inc., here. It is a published decision from the First Circuit decided on January 16, 2025. As usual, the blog entry is divided into categories and they are: facts; a temporary knee injury may indeed be a disability under the ADA; genuine issue of material fact exists as to whether the plaintiff was a qualified individual with a disability; a reasonable jury could conclude that an adverse action occurred; the retaliation claim needs to be considered on remand; the failure to accommodate claims survive summary judgment; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Facts

Two months into his new job with the company, Sutherland (plaintiff), injured his right knee, tearing his meniscus in two places and damaging his patella. Because of his injury, Sutherland twice requested that Peterson’s reduce the length of his workday. Eventually, he took a 12-week leave of absence to undergo knee surgery and recover. When he tried to return to work, in April 2020, Peterson’s was not receptive. Instead, Sutherland learned that Peterson’s had terminated him, effective the date he was supposed to return from leave, “due to lack of work during the COVID-19 pandemic.” Sutherland ultimately sued Peterson’s for disability discrimination and related claims. The district court granted summary judgment to Peterson’s, and Sutherland appealed. On appeal, the First Circuit reverses and vacates the grant of summary judgment on the discrimination and retaliation claims as well as the discrimination and failure to accommodate claims under Massachusetts laws. It upheld summary judgment grant with respect to wrongful termination based on violation of Massachusetts public policy, which had to do with plaintiff’s view whether biofuels were dangerous and the concerns he raised about that. We won’t cover the public policy section of the opinion in this entry.

The specific facts are of course much more detailed than this, but the above, taken directly from the opinion, is an excellent summary.

II

A Temporary Knee Injury May Indeed Be a Disability under the ADA

1. In a footnote, the court noted that the amendments to the ADA fundamentally changed the analysis of whether temporary disabilities are covered by the ADA.
2. Since Massachusetts law and the ADA are so similar in their phrasing, both get the same legal framework applied to the disability discrimination claims.
3. To make out a prima facie case of disability discrimination, a plaintiff has to show that he (in this case): 1) has a disability within the meaning of the ADA; 2) is qualified to perform the essential functions of the job with or without reasonable accommodation; and 3) was subject to an adverse employment action based in whole or in part on his disability.
4. A disability under the ADA includes a physical or mental impairment that substantially limits one or more major life activities, has a record of such an impairment, or is regarded as having such an impairment.
5. The definition of disability must be construed in favor of broad coverage of individuals.
6. In enacting the amendments to the ADA, Congress expressly rejected the Supreme Court’s overly strict interpretation of disability. In fact, Congress directed that the EEOC enact regulations to implement the ADA’s broad scope of protection. The EEOC did that in 29 C.F.R. §1630.2(j)(1)(vii)-(ix) when it stated that an injury need not be permanent or long-term to be considered sufficiently severe and therefore qualify as an impairment.
7. The EEOC regulations at 29 C.F.R. §1630.2(i)(2), also clarify that major life activities are not determined by reference to whether they are of central importance to daily life and that the term major shall not be interpreted strictly to create a demanding standard for disability.
8. In a footnote, the court said that these EEOC regulations pass the Loper Bright standard as Congress in the amendments to the ADA, explicitly granted the EEOC the authority to issue regulations implementing the definitions of disability. As such, that is the perfect example of Congress expressly delegating to an agency the authority to give meaning to a particular statutory term thereby passing the Loper Bright test for a court to rely on final regulations.
9. In enacting the amendments to the ADA, Congress expressly rejected previous Supreme Court precedent and concluded that a temporary injury can qualify as a disability if it is sufficiently severe.
10. No per se rule exists about either the type or amount of evidence a plaintiff needs to have for an impairment to exist. Some conditions plainly fall within the universe of impairments that a lay jury can figure out without expert guidance and one of those conditions is a knee injury.
11. A lay jury would have no difficulty grasping the connection between a knee injury and problems in conducting major life activities, such as standing, walking, and bending. In this case, plaintiff explained in vivid details that his knee hurt so badly that he wished his leg would be ripped off. He also told Peterson’s personnel that his knee was so swollen that he could not bend it, and that after working long days, he would have to reduce the swelling by way of icing in order to use the knee at all.
12. Plaintiff also demonstrated that he had a record of a disability for the period following his recovery from surgery. A record of disability may be satisfied by a showing that the plaintiff had a disability in the past.
13. Plaintiff also satisfies the standard of showing that he was regarded as having a disability given that it is undisputed that Peterson’s was either aware of or perceived the impairment that his knee injury presented at the time it terminated him. With respect to a regarded as claimed, the amendments make clear that a substantial major life activity being perceived by the employer is completely irrelevant to the regarded as claim.

III

Genuine Issues of Material Fact Exists As to Whether the Plaintiff Was a Qualified Individual with a Disability

1. The EEOC final regulations at 29 C.F.R. §1630.2(n)(1) say essential functions are fundamental job duties of the employment position.
2. Factors to be considered in evaluating whether a function is essential include the employer’s judgment, written job description, work experience of past incumbents of the job, and the current work experience of incumbents in similar jobs. Courts grant a significant degree of deference to the employer’s judgment.
3. A reasonable jury could find that installations and night shifts were not essential functions of the service technician position. In fact, Peterson’s hired the plaintiff before he had any history of injury on the express understanding that he would not perform those duties. Further, there is also evidence that other service technicians either did not perform installations or did not take night shifts. Accordingly, a jury could credit the evidence that Peterson’s did not universally require it technicians to perform these duties in order to conclude that the company did not view those duties as essential.

IV

A Reasonable Jury Could Conclude That an Adverse Action Occurred

1. The effective date of plaintiff’s termination was the same day his doctor cleared him to return to work after knee surgery. As such, the timing is enough for a reasonable jury to infer a causal connection between his disability (at least with respect to his record of and his regarded as claims), and the discharge.
2. On remand, the district court will have to consider whether Peterson’s has put forward a legitimate, nondiscriminatory reason for firing the plaintiff, and whether the plaintiff has introduced sufficient evidence to show that the reason offered by Peterson’s, a business slow down during Covid-19 pandemic, was pretextual.

V

The Retaliation Claim Needs to Be Considered on Remand

1. A retaliation claim is distinct from disability related claims.
2. It is possible for a jury to determine that an employer was willing to accommodate plaintiff’s request for reduced hours and medical leave initially, but nevertheless terminated the plaintiff in retaliation for having availed himself of those accommodations. Similarly, plaintiff’s retaliation claims based upon a protected conduct of requesting an accommodation, does not depend on whether plaintiff’s knee injury qualified as a disability under the ADA.

VI

The Failure to Accommodate Claim Survives Summary Judgment

1. To assert a claim for failure to accommodate, a plaintiff has to show that they: 1) have a disability within the meaning of the ADA; 2) are a qualified individual and that they can perform the essential functions of the job with or without an accommodation; and 3) the employer knew about plaintiff’s disability and did not reasonably accommodate it.
2. To demonstrate that Peterson’s knew about plaintiff’s disability, plaintiff was required to make a sufficiently direct and specific accommodation requests and explain how the accommodation was linked to a disability.
3. To establish that Peterson’s acted unreasonably, plaintiff must show that the proposed accommodation would have enabled him to perform the essential functions of a job, and also that, at least on the face of things, it would have been feasible for Peterson’s under the circumstances. If plaintiff satisfies that burden, Peterson’s must demonstrate that the accommodation would impose an undue hardship on the operation of the business in order to defeat the claim. Mere assertions by the defendant are not sufficient. Instead, the employer must produce at least some modicum of evidence of the asserted hardship, financial or otherwise.
4. In the failure to accommodate process, the scope of the employer’s obligation is not crystal clear. However, the employer has at least some responsibility in determining the necessary accommodation since the regulations envision an interactive process requiring participation by both parties. An employer’s refusal to participate in the process may itself constitute evidence of a violation of the statute.
5. Plaintiff gave adequate notice of a disability that needs accommodation when he explained that he was requesting a reduced schedule because his meniscus was torn pretty bad and he was in excruciating pain. In light of the parties prior discussions about plaintiff’s knee and his work schedule, that description was sufficiently direct and specific for a jury to conclude that Peterson’s was on notice that plaintiff was requesting a reduced work schedule because of his knee injury even in the absence of a Dr.’s note.
6. Plaintiff made another request for reduced work schedule on December 18, 2019. That request was accompanied by a Dr.’s note explaining that plaintiff needed surgery.
7. Plaintiff’s previous request not to do installation work and night shifts cannot be considered a part of his disability accommodation request because Peterson’s had agreed that Sutherland would not do this type of work when it offered him the job, well before his knee injury.
8. Modified work schedules are examples of possible reasonable accommodations. As such, plaintiff’s request for a shorter work schedule was reasonable at least on the face of things.
9. Plaintiff also showed that Peterson’s employee handbook define part-time employees as those who regularly work less than 30 hours per week and Peterson’s had a part-time employee on staff. As such, that evidence was sufficient to allow a factfinder to conclude that plaintiff’s request for an identical schedule was a reasonable one.
10. On remand, the district court should consider whether Peterson’s actions amounted to a failure to engage in the interactive process under Massachusetts law, and whether that failure itself was a violation of the Massachusetts antidiscrimination law or at least evidence that Peterson’s acted unreasonably.

VII

Thoughts/Takeaways

1. Temporary disabilities are protected under the ADA if they are a physical or mental impairment that substantially limits a major life activity.
2. The EEOC regulations defining disability pass the Loper Bright test.
3. Medical evidence is not always necessary for establishing whether a substantial limitation on a major life activity exists. It depends upon the physical or mental impairment.
4. You can be protected under the ADA by having an actual disability, a record of a disability, OR being regarded as having a physical or mental impairment. Any of those work. It is possible that just one, two, or even all three will apply simultaneously.
5. An employer’s judgment as to what essential functions of a particular job are is not dispositive. Courts will look under the hood so to speak. The extent they look under the hood can vary quite a bit.
6. Timing between a reasonable accommodation request and an adverse action matters a great deal to many courts.
7. Requesting an accommodation can serve as the basis for a retaliation claim.
8. The court uses a bit of a different formulation for what is sufficient notice than I have seen in other cases. It talks about the notice having to be, “sufficiently direct and specific.” Magic words are not required but common sense is.
9. In failure to accommodate cases, it is the responsibility of the plaintiff to show that a proposed accommodation would have enabled him to perform the essential functions of the job.
10. Employer’s should always engage in the interactive process.
11. Modified work schedules are examples of possible reasonable accommodations.
12. Don’t forget that the cases are all over the place with respect to whether failure to accommodate is by itself an adverse action. As we discussed here, it is certainly looking like the law is headed towards a failure to accommodate by itself being an adverse action.