Call The Right Attorney™
No Fee Guarantee

Does The ADA Protect Transitory Conditions Like COVID Or A Broken Leg?

by | May 19, 2022 | Disability Discrimination, Employment Discrimination, Employment Law, Federal Law Update, Wrongful Termination |

On May 6, 2022, the United States Court of Appeals for the Ninth Circuit issued an opinion in in Shields v. Credit One Bank, N.A., No. 20-15647, 2022 WL 1436839, (9th Cir. May 6, 2022), holding that even a minor and transitory impairment can be an actual disability under the Americans with Disabilities Act (“ADA”) if it substantially limits major life activities when active. While Shields held that the transitory impairment arising from post-surgical limitations can satisfy the actual disability or record of disability options under the ADA, the holding will likely have broader implications by analogy. Specifically, under Shields, the ADA may now cover illnesses that temporarily limit the major life activity of breathing, such as COVID or pneumonia; a broken leg that limits the major life activity of walking; or a concussion that briefly limits the major life activity of concentrating, thinking, and working.

What is the history of the ADA?

Best Employment Law Attorney Answer: The original Americans with Disabilities Act was passed and signed into law by President George H.W. Bush on July 26, 1990. Believing that the law was being applied by courts to too constrictively define what qualified as a disability, Congress passed the Disabilities Act Amendments Act of 2008, which was signed into law by George W. Bush.

What is considered a disability under the ADA?

Best Employment Discrimination Lawyer Answer: The ADA defines an employee to have a “disability” if the employee (1) has a physical or mental impairment that substantially limits one or more of the major life activities, (2) has a record of such impairment, or (3) is regarded by the employer as having such impairment. (Best Law Read: What Are My Mental Health Rights At Work?; Is Cancer A Disability Under The ADA?; Are Genetic Mutations A Protected Disability Under The ADA?)

Employees are protected under all three definitions of disability from being discriminated with regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). However, not all three categories defining disabilities provide the same rights. For example, an employer must only engage in the interactive process and provide a reasonable accommodation to employees who have a physical or mental impairment that substantially limits one or more of the major life activities. (Best Law Read: What Is The Interactive Process For Disabled Employees?). The United States Court of Appeals for the Ninth Circuit’s holding in Shields provides another distinction?

What did the United States Court of Appeals for the Ninth Circuit hold in Shields?

Best Disability Workplace Accommodation Lawyer Answer: In Shields, the United States Court of Appeals for the Ninth Circuit recognized that ADA specifically provided that the “regarded as” definition of disability “shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with actual or expected duration of 6 months or less.” 42 U.S.C. § 12102(3)(B). Based on this, the Ninth District held: “The fact that Congress added such a ‘transitory and minor’ limitation only to the ‘regarded as’ alternative in § 3(1)(C) and not in the other two alternative definitions of ‘disability’ strongly confirms that no such temporal limitation applies to those other two alternatives.” Id. at *5 (Emphasis in original).
To further support this conclusion, the United States Court of Appeals for the Ninth Circuit pointed the EEOC guidance on this issue:

[A]n impairment does not have to last for more than six months in order to be considered substantially limiting under the first or the second prong of the definition of disability. For example, as noted above, if an individual has a back impairment that results in a 20-pound lifting restriction that lasts for several months, he is substantially limited in the major life activity of lifting, and therefore covered under the first prong of the definition of disability.

Id.  at *6 (Emphasis in original).

Importantly, the Ninth Circuit did not hold that the length of time of the physical or mental impairment should not be considered.  Quite the contrary, it held: “while Credit One is correct in noting that the guidelines confirm that the ‘duration of an impairment’ remains ‘one factor that is relevant in determining whether the impairment substantially limits a major life activity,’ Shields’s 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.” Thus, limitations that will last only a few days or a week or so likely will not receive ADA protection.

What are the facts in Shields?

Best Disability Discrimination Attorney Answer: Karen Shields worked in the  Human Resources (“HR”) Department of Defendant Credit One Bank, N.A. (“Credit One”) in Las Vegas, Nevada. In order to be tested for potential bone cancer, Shields had a bone biopsy, which required a large hole cut into shoulder and arm. In addition to a three-day hospitalization, Shiels was ordered off work for several months. Although her employer provided her unpaid time off as an accommodation, Credit One Bank fired her when her return date was moved back approximately three weeks.

Shields sued for disability discrimination, failure to accommodate, and wrongful termination under the ADA. Importantly, Shields only asserted that she was disabled under the first disability definition – having an actual physical or mental impairment that substantially limits one or more of the major life activities (likely because of the failure to accommodate component). She identified the disability as the physical limitations caused by the surgery and not the potential bone cancer.

What happened in Shields?

Best Employment Lawyer Answer: The employer moved to dismiss the complaint asserting that no recognizable disability had been asserted in the complaint because of the transitory nature of surgical injuries. The District Court agreed and dismissed the Complaint.  For the reasons set forth above, the United States Court of Appeals for the Ninth Circuit reversed and remanded the case back to the trial court, where the case will proceed to the discovery phase of litigation.

What should I do if the company that I worked for fired me for asking for a disability accommodation?

Best Employees’ Rights Law Firm Answer: As you can see, the ADA is complicated, and the rules are constantly changing. Your rights and claims will depend on the specific facts of your case. That is why you should consult with a qualified and knowledgeable employment law attorney about how to handle your disability discrimination and/or failure to accommodate case. If you are disabled or your employer perceives you as being disabled; and you have been fired, wrongfully terminated, discriminated against, demoted, wrongfully disciplined, denied wages, or even think that you might need a disability discrimination lawyer, then call the right attorney to schedule a free and confidential consultation. The best option is not to wait. Call our lawyers in Cleveland, Columbus, Toledo, Cincinnati, Youngstown and Detroit to get help now. Spitz, The Employee’s Law Firm and its attorneys are experienced and dedicated to protecting disabled employees’ rights under ADA and Ohio employment law.


This employment law website is an advertisement. The materials available at the top of this page and on this employment law website are for informational purposes only and not for the purpose of providing legal advice. If you are still asking, “how do I get a work accommodation for my disability?”, “am I considered disabled under the Americans with Disabilities Act?”, “what should I do if I was fired after requesting a disability accommodation to do my job?”; or “can my employer fire me for being out for surgery?”, it would be best for you to contact an Ohio attorney to obtain advice with respect to disability discrimination questions or any particular employment law issue. Use and access to this employment law website or any of the links contained within the site do not create an attorney-client relationship. The legal opinions expressed at or through this site are the opinions of the individual lawyer and may not reflect the opinions of The Spitz Law Firm, attorney, Brian Spitz or any individual attorney.


"" "