My daughter completed her classroom component for high school this week and now is just waiting to graduate, so my schedule has been a bit all over the place. Hence, I am getting this blog entry up later in the week than I usually do.
This week’s blog entry is already making the rounds among some labor and employment law bloggers. So, I figured I could offer my own perspective on it. The case, Shields v. Credit One Bank, N. A. , a published decision from the Ninth Circuit decided on May 6, 2022, discusses just when is a temporary disability an actual disability under the ADA as amended. Reading this case and reading the law review article by Prof. Cheryl L. Anderson discussing transitory and minor in the regarded as exception, the article, here, has caused me to reconsider my approach that it was great preventive law to figure out whether a disability was transitory and minor with respect to a temporary disability fitting into the actual disability prong. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning that an impairment need not be permanent or have long-term effects before it can be considered a disability under the ADA as amended; court’s reasoning that Shields adequately alleged she had a disability under the ADA as amended; and thought/takeaways. Of course, the reader is free to focus on any or all of the categories.
Facts (taken from opinion with minor edits)
In November 2017, Shields began working in the Human Resources (“HR”) Department of Defendant Credit One Bank, N.A. (“Credit One”) in Las Vegas, Nevada. Her formal job title was “HR Generalist I,” and the official job description for that position listed a variety of basic “physical requirements” that “must be met by an employee to successfully perform the essential functions of this job.” These requirements included the ability to “use hands to finger, handle, [and] feel,” to “reach with hands and arms,” and, occasionally, to “lift and/or move up to 2 pounds.” The job description also stated, however, that “[r]easonable accommodations may be made to enable individuals with disabilities to perform the essential functions” of the job.
After a concern arose in January 2018 that Shields might have bone cancer, she was scheduled for a bone biopsy surgery, which took place on April 20, 2018. The biopsy surgery was a significant procedure that required a three-day hospitalization. In order to obtain the necessary tissue samples from Shields’s right shoulder and arm, the surgeon made what the complaint described as a “10 centimeter skin incision” and created a window “into the bone measuring one centimeter in width by two centimeters in length.” Subsequent testing of the samples revealed that “everything was benign” and that Shields did not have cancer after all.
Nonetheless, given the substantial physical impact of the biopsy surgery itself, Shields was unable to return to work for several months. Specifically, her postsurgical injuries prevented her from, inter alia, fully using her right arm, shoulder, and hand to lift, pull, push, type, write, tie her shoes, or use a hair dryer. In order to verify Shields’s SHIELDS V. CREDIT ONE BANK 5 inability to work, her surgeon, Dr. Hillock, completed a copy of Credit One’s standard “ADA Employee Accommodation Medical Certification Form.” In completing the form, Dr. Hillock stated that Shields would be unable to perform her essential job functions, with or without accommodation, for two months. In the portion of the form that asked him to identify the “major life activities” that “are substantially limited by the medical condition or accompanying treatment,” Dr. Hillock listed “sleeping, lifting, writing, pushing, pulling [and] manual tasks.” After submission of the form, Shields was approved for an unpaid, eight-week “medical leave of absence as an accommodation under the ADA.” The leave was unpaid rather than paid because Shields did not qualify for paid leave under the Family and Medical Leave Act.
Dr. Hillock initially estimated that Shields would be able to return to work on June 20, 2018. However, as that date approached, Shields still lacked full use of her right shoulder, arm, and hand. Accordingly, on June 18, 2018, Dr. Hillock prepared a note indicating that Shields was still unable to return to work. The relevant portion of the note stated, in its entirety: “Patient has an appointment on 7/10 at which point a return to work date will be discussed. Unable to work until appointment.”
Shortly after receiving Dr. Hillock’s note, the assistant vice president of Credit One’s HR Department called Shields and asked her to come into the office the next day. Shields asked “if she was being fired,” and the assistant vice president said that she was not and that they needed her to come in to discuss “her healthcare premium.” When Shields reported to the office, however, she was told that her position was being eliminated and that she was therefore being 6 SHIELDS V. CREDIT ONE BANK terminated. Her healthcare coverage was consequently terminated about a week later.
Shields filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), and she received a “Notice of Right to Sue” on March 5, 2019. Specifically, the complaint alleges that, as a reasonable accommodation for her temporary disability arising from the biopsy surgery, Credit One “had a continuing duty under the ADA to extend Shields’[s] medical leave of absence” for the “short” additional period of time “until she was able to return to her job.” Instead, Shields alleged, Credit One unlawfully terminated her. Shields sought, inter alia, back pay, compensatory damages, punitive damages, and attorney’s fees.
The district court granted Credit One’s motion to dismiss the complaint under Rule 12(b)(6). The court concluded that, for two reasons, Shields had failed adequately to plead a disability within the meaning of the ADA. First, citing the 2010 version of the EEOC regulations defining disability, the court held that Shields had failed to plead facts showing “any permanent or long-term effects for her impairment” SHIELDS V. CREDIT ONE BANK 7 (emphasis added). Second, the court concluded that Shields failed to allege sufficient factual detail to “state a plausible impairment” during the requested extension of her medical leave of absence. The court entered judgment, and Shields filed a timely notice of appeal.
Court’s Reasoning That an Impairment Need Not Be Permanent or Have Long-Term Effects before It Can Be Considered a Disability under the ADA As Amended
- §106 of the ADA has long granted the EEOC authority to issue regulations carrying out title I of the ADA.
- In 2008, Congress enacted the ADAAA for the express purpose of rejecting the narrow understanding of substantially limits that had been adopted in several Supreme Court decisions. In particular, the ADAAA declares that one of its purposes is the rejection of Supreme Court holdings that the phrase substantially limits in the ADA’s definition of disability need to be interpreted strictly to create a demanding standard for qualifying as a person with a disability. The ADAAA also rejected the principle that to be substantially limiting an individual must have an impairment that prevents or severely restricts the individual from doing activities of central importance to most people’s daily lives.
- The ADAAA findings also expressly state that the current EEOC ADA regulations defining the term substantially limits as significantly restricted are inconsistent with congressional intent by using too high of a standard. The reference 2008 version of the EEOC regulations that the ADAAA expressly rejects as too restrictive are identical to the 2010 version of the regulations applied by the district court in this case.
- The ADAAA amended §3 of the ADA by adding several rules of construction together with language directing that the definition of disability shall be construed in accordance with those rules of construction.
- Those rules of construction include the principles that: 1) the definition of disability in the ADA must be construed in favor of broad coverage of individuals under the ADA to the maximum extent permitted by the terms of the ADA; 2) the term substantially limits must be interpreted consistently with the findings and purposes of the ADA as amended; and 3) an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
- The ADAAA also directs the EEOC to revise the portion of its current regulation that defined the term substantially limits as significantly restricted to be consistent with the ADAAA, including the amendments made by the ADAAA.
- The ADAAA added a new provision giving the EEOC the right to issue regulations with respect to definitional terms in the ADA. The court notes in a footnote that prior to the addition of that language, the EEOC’s expressed regulatory authority extended only to issuing regulations to carry out title I of the ADA. However, the definitional terms are not in title I but in preliminary provisions proceeding it. So, the added language prevents any argument over the EEOC’s authority to issue regulations construing the ADA’s definitional terms.
- In 2011, the EEOC issued regulations, 29 C.F.R. §1630.2(j)(1)(ix), noting that the effects of an impairment lasting are expected to last fewer than six months can be substantially limiting.
- With respect to the regarded as prong, the ADAAA specifically states that the regarded as prong does not apply to impairment that are transitory and minor. A transitory impairment, per 42 U.S.C. §12102(3)(B), is an impairment with an actual or expected duration of six months or less.
- The fact that Congress added transitory and minor language only to the regarded as alternative and not to the actual disability and record of disability prongs strongly confirms that no such temporal limitation applies to the actual and record of disability prongs. After all, where Congress included particular language in one section of the statute but omits it in another section of the same statute, it is generally presumed that Congress acts intentionally and purposely in writing a statute that way.
- The EEOC’s regulation recognizes the statutory distinction by providing that the six months transitory and minor limitation applies only to the regarded as prong of the definition of disability and does not apply to the actual disability and record of disability prongs.
- The EEOC explanatory guidance accompanying §1630.2(j)(1)(ix), here, explains that although the duration of an impairment remains one factor relevant in determining whether the impairment substantially limits a major life activity, there is no categorical rule excluding short-term impairments, which may be covered if sufficiently severe.
- The ADA as amended and its implementing EEOC regulations make clear that the actual impairment prong of the definition of disability is not subject to any categorical temporal limitation and therefore, the district court erred in holding that such a temporal limitation existed.
Court’s Reasoning That Shields did Adequately Allege That She Had a Disability under the ADA as Amended
- In order to properly plead a disability, Shields had to allege, per 42 U.S.C. §12102(1)(A), that she had: 1) a physical or mental impairment; 2) that substantially limits; 3) one or more major life activities.
- Her complaint alleged that her bone biopsy surgery involved a 10 cm incision creating a window into the bone measuring 1 cm in width by 2 cm in length for purposes of harvesting tissue from her shoulder and arm. The substantial injuries inherent in such an intrusive surgery rendered her unable to fully use her right shoulder, arm and hand and unable to perform such tasks as lifting, pushing, and pulling things with her shoulder, arm and hand, typing on a computer keyboard or otherwise, handwriting, or even tying her shoes or lifting a hair dryer to dry her hair. Such allegations adequately allege that due to her biopsy surgery, Shields had a physical impairment, both in the ordinary sense of that term as well was in the sense described in the EEOC’s final implementing regulations.
- The allegation concerning Shields’s condition during the initial eight weeks are sufficiently well pleaded to give rise to a plausible inference that she had an impairment. Further, the complaint went even further when it alleged that her surgeon had concluded that her condition had not improved sufficiently by the end of those eight weeks to permit her to return to work.
- Iqbal simply did not require Shields to include more granular details about the exact nature of her then existing limitation that caused the surgeon to conclude that her injuries had not sufficiently healed.
- The activities that Shields pleaded that she was unable to perform qualify as major life activities under the ADA. In particular, the ADA expressly states that major life activities include but are not limited to: caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. 42 U.S.C. §12102(2)(A).
- The complaint specifically alleges that her post surgery injuries impeded her ability to lift, perform basic grooming tasks necessary to care for herself, and to perform manual task such as pushing or pulling. It also alleges that she was unable to perform some of the core physical tasks included in her job description, such as lifting, reaching, fingering, and handling, all of which indicates that her ability to work was implicated as well.
- As amended by the amendments to the ADA, the ADA expressly provides, 42 U.S.C. §12102(4)(E)(i), that the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication, medical supplies, or other aids.
- The ADA as amended further states, per 42 U.S.C. §12102(4)(C), that an impairment need only substantially limit one major life activity in order to give rise to a covered disability.
- The statute also provides that, as a general matter, the definition of disability is to be construed in favor of broad coverage of individuals under the ADA to the maximum extent permitted by the terms of the ADA.
- The definition of substantially limits in particular has to be interpreted consistently with the findings and purposes of the ADAAA, per 42 U.S.C. §12102(4)(B), which includes the principle that the question of whether an individual’s impairment as a disability under the ADA should not demand extensive analysis.
- The formal guidance accompanying the amended EEOC regulations specifically states that a temporary impairment impeding the performance of a major life activity and that last for several months is sufficiently severe to qualify as substantially limiting within the meaning of the ADA and the EEOC regulations.
- While the duration of an impairment remains one factor relevant to determining whether the impairment substantially limits a major life activity, Shields alleged impairment, which involved a substantial inability to perform certain major life tasks for more than two months, is clearly of sufficient duration and impact to qualify.
- I have reconsidered the transitory and minor exception as a preventive law matter with respect to temporary disabilities for a couple of reasons. First, as Prof. Cheryl Anderson noted in her excellent law review article, which we mentioned previously here, courts are all over the place with respect to what is transitory and minor. Second, I find Shields persuasive that it is absolutely clear that transitory and minor does not apply to the actual and record of disability prongs. That said, the question does become what is “sufficiently severe,” to constitute a disability of temporary duration covered by the ADA as amended. Too that, I still believe it makes sense to go back to how the actual disability prong deals with substantial limitation. That is, if you have a disability that substantially limits a major life activity as set forth in the actual disability prong (substantially limited in a major life activity as compared to most people in the general population), then you most likely have a disability that is sufficiently severe to be covered under the actual disability prong. Think of it in terms of the extremely minor impairments, such as allergies or a cold as being excluded, with everything else on the table. Again, I refer you to Prof. Anderson’s excellent law review article. I would also be wary of getting into a numbers game as to how many days are sufficient (this court says two months is sufficient). Using a bit of common sense (if you have people with disabilities that can look at this situation for you as well, that could be really helpful), and correlating the situation to substantially limits as it works with respect to actual disabilities, should go a long way to anticipating most problems.
- The ADAAA gave the EEOC explicit authority to regulate definitional terms.
- While Iqbal does not require the inclusion of granular details about the exact nature of a plaintiff’s existing limitations causing a healthcare provider to conclude that injuries had not sufficiently healed, it is a good idea to include them in your complaint if you can.
- With the exception of eyeglasses, mitigating measures do not count when evaluating whether a person has a disability under the ADA as amended. That said, mitigating measures do factor into figuring out just what reasonable accommodations will work for a particular person with a disability.
- I am not aware of a split among the U.S. Circuit Court of Appeals with respect to the issues discussed in this case, and so one wonders about the likelihood of the Supreme Court taking this case. Certainly, the plaintiff will have no interest in taking this case to the Supreme Court.
- The EEOC may wish to consider amending its regulations and/or issuing further guidance to make clear just what it thinks “sufficiently severe,” means.
- Can you expect to see lots of litigation over what “sufficiently severe,” means? Maybe so.
- I am not a fan of using the word “shall,” when drafting contracts or statutes as the word is capable of seven different meanings. You can easily see the multiple meanings the word is capable of by just thinking about what happens when your child says they, “shall clean up their room.” Just when will that room be cleaned up? Never, soon, immediately, within a couple of hours, a week, etc.
- The decision is published.
- Interesting that the court mentioned that Shields also alleged sufficient facts to show that she was substantially limited in the major life activity of working. We have mentioned several times in our blog that plaintiffs attorney should stay away from alleging that major life activity whenever possible. Here, plaintiff’s attorney did allege a whole host of major life activities besides working, which they may or may not have even alleged in their complaint (I have not checked the complaint).
- A leave of absence when FMLA is either not in play or has been exhausted can most certainly be a reasonable accommodation.