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The Treatise is based upon federal appellate court decisions from 1996
to 2008. We are currently in the process of updating the Treatise. Until
that update is complete, it is possible that certain cases cited in the
Treatise may no longer represent current law.
Requirement that disability be permanent or long-term
13.272 Case law
Under the ADA
Amendments Act of 2008, the
definition of "regarded as disabled" does not apply to "impairments that are
transitory and minor. A transitory impairment is an impairment with an actual or
expected duration of 6 months or less. See, 42 U.S.C. § 12102(3)(B).
Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534
U.S. 184, 196 (2002), the court explained:
In determining whether an individual is substantially
limited in a major life activity, the regulations instruct that the
following factors should be considered: "[t]he nature and severity of the
impairment; [t]he duration or expected duration of the impairment; and [t]he
permanent or long-term impact, or the expected permanent or long-term impact
of or resulting from the impairment." §§ 1630.2(j)(2)(i)-(iii).
Guzman-Rosario v. United Parcel Service, Inc., 397
F.3d 6, 10 (1st Cir. 2005), the court explained:
[The requirement that the impairment be permanent or
long-term] may encompass conditions that are "potentially long-term, in that
their duration is indefinite and unknowable,"
Santiago Clemente v.
Executive Airlines, Inc., 213 F.3d 25, 31 (1st Cir. 2000) (internal
quotation marks omitted), but not those that are brief or foreseeably
temporary, Carroll v. Xerox Corp., 294 F.3d 231, 240-41 (1st Cir.
2002) (three-month medical leave for chest pains),
Soileau v. Guilford of
Me., Inc., 105 F.3d 12, 16 (1st Cir. 1997) (five-week leave from work
and four-month activity restriction because of a depressive attack).
. . . .
Until the Supreme Court fine-tunes its interpretation, it
will be unclear how lower courts should deal with periods between, say, 6
and 24 months.
In Adams v. Citizens Advice Bureau, 187 F.3d 315,
316-17 (2d Cir. 1999), the court explained that an impairment that resulted in
an inability to work for 3.5 months was insufficient to constitute a substantial
Because this court has found a temporary impairment of
seven months, by itself, "too short [in] duration . . . to be 'substantially
limiting,'" Colwell v. Suffolk County Police Dep't, 158 F.3d 635, 646
(2d Cir. 1998), cert. denied, 119 S.Ct. 1253 (1999), Adams has failed
to make out a claim that he was disabled within the meaning of the ADA.
Williams v. Philadelphia Housing Authority Police Dept.,
380 F.3d 751, 765 (3d Cir. 2004), the court explained:
As a matter of law, a "transient, nonpermanent
condition," McDonald v. Commonwealth, 62 F.3d 92, 94-97 (3d Cir.
1995), or "a temporary, non-chronic impairment of short duration,"
Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 380 (3d Cir. 2002), it is
true, fall short of substantially limiting an individual in a major life
activity. Accordingly, the EEOC has suggested, for example, that broken
limbs, sprained joints, concussions, appendicitis, and influenza, being
impairments of a temporary nature "with little or no long term or permanent
impact," cannot as a matter of law substantially limit an individual in a
major life activity. See EEOC Interpretive Guidance, 29 C.F.R.
Pt. 1630, App. § 1630.2(j). However, Williams does not need to show that his
disability is permanent; instead, under the EEOC regulations, the "nature
and severity" of Williams's impairment and its "duration or expected
duration," along with the "permanent or long term impact" of that
impairment, are factors to be considered in determining whether an
individual is substantially limited in a major life activity. 29 C.F.R. §
In Pollard v. High's of Baltimore, Inc., 281 F.3d 462,
468-69 (4th Cir. 2002), the court found that a nine-month incapacity from back
surgery was insufficient to establish a permanent impairment. In reaching this
conclusion, the court explained:
Prior precedent of this court likewise indicates that
temporary impairments usually do not fall within the ADA's definition of
Halperin, we stressed that "it is evident that the
term 'disability' does not include temporary medical conditions, even if
those conditions require extended leaves of absence from work." 128 F.3d at
199 (internal citations omitted). And several of our sister circuits have
taken a similar approach with respect to temporary impairments under the
Act. See, e.g., Gutridge v. Clure, 153 F.3d 898,
901-02 (8th Cir. 1998) (holding that plaintiff's inability to
work while recovering from wrist and elbow surgery did not qualify as a
disability under the ADA and noting that "the ADA requires permanent or
long-term impairments"); Heintzelman v. Runyon, 120 F.3d 143, 144-45
(8th Cir. 1997) (same with regard to a temporary back injury); Rogers v. Int'l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996)
(same with regard to recovery from ankle injury and surgery); McDonald v.
Pennsylvania, 62 F.3d 92, 95-96 (3d Cir. 1995) (same with regard to
recuperation from abdominal surgery); Evans v. City of Dallas, 861
F.2d 846, 852-53 (5th Cir. 1988) (same under the Rehabilitation Act of 1973
with respect to inability to work due to knee surgery).
However, while the presumption exists that temporary
impairments do not qualify as disabilities under the ADA, temporary
conditions still require a case-by-case evaluation under the Act. See,
e.g., Toyota, 122 S. Ct. at 692; Sutton, 527 U.S.
at 483; Ennis v. Nat'l Ass'n of Bus. & Educ. Radio, Inc., 53 F.3d 55,
59-60 (4th Cir. 1995). Temporary disabilities present a spectrum of cases
and at some point the duration of an impairment could be so long that it
cannot properly be characterized as temporary.
In Halperin v. Abacus Technology Corp., 128 F.3d 191,
200 (4th Cir. 1997), the Fourth Circuit explained that a two month impairment
was not substantially limiting.
In Anders v. Waste Management of Wisconsin, 463 F.3d
670, 677 (7th Cir. 2006), the court explained that a panic disorder that lasted
six days was not a disability:
As the Supreme Court ruled in Toyota Motor Mfg., Ky.
v. Williams, a short-term impairment such as this does not rise to the
level of disability as defined by the ADA. See 534 U.S. 184,
195 (2002). Instead, Anders must have demonstrated that the impairment
limited a major life activity on a permanent or long-term basis. Id.
at 195, 198; see also
Ogborn v. United Food
and Commercial Workers Union, 305 F.3d 763, 767-68 (7th Cir. 2002)
(holding an eight week bout of depression was not a disability as defined by
Pittari v. American Eagle Airlines, Inc., 468 F.3d
1056, 1063 (8th Cir. 2006), the court explained:
Under the ADA, a temporary impairment with little or no
long-term impact does not constitute a disability. 29 C.F.R. §
1630.2(j)(2)(ii)–(iii). Rather, "[t]he impairment's impact must . . . be
permanent or long term." Williams, 534 U.S. at 198.
In Sanders v. Arneson Products, 91 F.3d 1351, 1354
(9th Cir. 1996), cert. denied, 117 S. Ct. 1247 (1997), the Ninth Circuit
held that a three and one-half month impairment with minimal residual effects
was not substantially limiting.
In Borgialli v. Thunder Basin Coal Co., 235 F.3d 1284,
1290 (10th Cir. 2000), the court noted:
The ADA was not designed to apply to temporary
conditions. See Bolton v. Scrivner, Inc., 36 F. 3d 939, 942,
943 (10th Cir. 1994).
However, in Aldrich v. Boeing Co., 146 F.3d 1265 (10th
Cir. 1998), the court explained that an impairment may be substantially limiting
before a permanent disability rating is issued by a treating physician. In
reaching this conclusion, the court explained:
Although "temporary, non-chronic impairments of short
duration, with little or no long term or permanent impact, are usually not
disabilities," 29 C.F.R. pt. 1630 app., § 1630.2(j) (emphasis added), "an
impairment does not necessarily have to be permanent to rise to the level of
a disability. Some conditions may be long-term, or potentially long-term, in
that their duration is indefinite and unknowable or is expected to be at
least several months. Such conditions, if severe, may constitute
disabilities," EEOC, Interpretive Manual (1995), reprinted in 2 EEOC
Compliance Manual § 902.4(d), at 902-30 (BNA 1997) ("EEOC Compliance
In Sutton v. Lader, 185 F.3d 1203, 1209 (11th Cir.
1999), the court explained:
To establish that an employer regarded an employee as
"disabled" and thus covered by the Rehabilitation Act, a plaintiff must
first introduce substantial evidence that the employer regarded him as
having a permanent or long-term impairment. E.L. Hamm & Associates,
100 F.3d at 912-13. A temporary inability to work while recuperating from
surgery is not such a permanent or long-term impairment and does not
constitute evidence of a disability covered by the Act. Gutridge v. Clure,
153 F.3d 898, 901-02 (8th Cir.1998) (citations omitted); Heintzelman v.
Runyon, 120 F.3d 143, 145 (8th Cir.1997) (inability to work while
recovering from surgery not evidence of permanent impairment); Rogers v.
Int'l Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir.1996) (surgery
and recovery not a disability); McDonald v. Pennsylvania, Dep't of Public
Welfare, 62 F.3d 92, 96-97 (3d Cir.1995) (recuperation after abdominal
surgery not disability); Evans, 861 F.2d at 852-53 (knee injury that
required surgery not disability).