Labor & Employment Law Daily Glass cutter’s foot condition limited standing and walking for 8 1/2 months; not temporary or transitory
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Friday, December 13, 2019

Glass cutter’s foot condition limited standing and walking for 8 1/2 months; not temporary or transitory

By Kathleen Kapusta, J.D.

Even under the ADA’s regarded as prong, the condition, as alleged, was more than a temporary and transitory issue.

Not only would an employee’s foot condition, which required two surgeries and several months of medical leave, clearly meet the ADAAA’s expansive definition of physical impairment, he sufficiently alleged that his ability to stand and walk were significantly impaired. Further, even under the ADA’s regarded as prong, his foot condition, which lasted approximately 8 & 1/2 months, extended beyond just a temporary and transitory issue, said a federal court in Kentucky, denying his employer’s partial motion to dismiss. The employee’s claim under the Kentucky Civil Rights Act, which still follows the pre-ADAAA definition of disability, also advanced (Grainger v. Hoskin & Muir, Inc. dba Cardinal Shower Enclosures, December 6, 2019, Stivers, G.).

The long-term employee for the shower enclosure fabrication business primarily cut glass to make “demo boxes.” In May 2017, he took medical leave for a “foot issue,” returning later that month with a work release noting he should not have “prolonged standing or walking,” and should be placed on “limited duty” with “sedentary work.” He was provided a chair as an accommodation.

Limited standing and walking. Three months later, a flare-up of his foot issues required two surgeries and seven months of leave. When he returned to work, his doctor again recommended limited standing and walking. His employer placed him in a temporary position for up to 30 days, at which time his status was to be re-evaluated. When his doctor subsequently determined that the employee’s limitations should remain in place until another revaluation 30 days later, the company fired him.

Although the company argued that the employee did not sufficiently plead he had a disability under the ADA, the court found his foot condition met the ADA’s expansive definition of “physical impairment.” As to the company’s contention that the employee failed to show he was substantially limited in one or more major life activities, his first work release indicated no “prolonged standing or walking.”

Nearly required amputation. Further, while he was on his second leave, his doctor sent a note indicating that his condition nearly required amputation of his leg and that he needed a position where “he is not ambulating on a regular basis.” And when he returned to work, the doctor indicated that he was limited in standing and walking until further evaluation. The doctor again noted that the employee could lose his leg if it did not heal properly. This, said the court, was enough to state a plausible claim that he had a physical impairment that substantially limited at least one major life activity.

Regarded as. Turning to the ADA’s regarded as prong, the court pointed out that although the employee did not need to show his impairment limited a major life activity, a transitory and minor impairment can’t support a perceived disability claim. And while the employer argued that the employee’s foot condition was transitory and minor, the court disagreed. His foot condition, which began in May 2017, escalated in August, and when he returned to work in March 2018, his doctor recommended limitations on standing and walking, at least until early May. Even conservatively, said the court, his physical condition lasted approximately 8 & 1/2 months, which was long enough to extend beyond a temporary and transitory issue.

KCRA. As to his claim under the KRCA, which follows the pre-ADAAA definition of disability, the court pointed out that the ADAAA primarily amended the ADA’s regarded-as prong and thus “KCRA’s adherence to the ADA’s prior scope of the third prong does not significantly impact the previous analysis,” the court pointed out, finding its conclusion about his impaired ability to stand and walk still applied here.

In addition, the court observed, the Kentucky Supreme Court, in a case upon which the employer relied, noted that “substantially limits” means “unable to perform or significantly restricted as to the condition, manner, or duration under which an individual can perform a particular major life activity as compared to the average person.” And here, the employee sufficiently pleaded that his ability to walk and stand were impaired as compared to the average person. “Although the standard for what constitutes a disability under the KCRA is admittedly narrower than the revised standard of the ADAAA,” the employer “failed to provide sufficient justification for dismissal of the KCRA claim,” the court concluded.

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