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COVID, Temporary Disabilities, and the ADA

What medical conditions are, or should be, covered by disability rights laws like the Americans with Disabilities Act (ADA)?  

It’s a hot topic in these times. The federal government recently weighed in to say that at least some COVID cases are protected disabilities, as I argued here. I wonder if the new federal guidance, which emphasizes “long COVID,” may actually be narrower than the current law.

Contrary to what has been fairly widespread confusion, the ADA covers temporary disabilities.

A Knee Injury May Confer ADA Rights

A recent case illustrates the debate about temporary disabilities. It also shows how ADA coverage debates can turn on implicit assumptions about who is deserving of accommodation. In Hamilton v. Westchester County, the Second Circuit, a federal appeals court in New York, weighed in to say that people have rights under the ADA even if their disabilities are temporary.[1] This decision corrects a long-running line of cases mistakenly relying on an outdated understanding that the ADA only covers permanent conditions.

Davonte Hamilton, who appears to have been a promising high school athlete from Poughkeepsie, New York, is in his early 20s.  To play basketball at the Westchester County Jail, where he was incarcerated, he traveled to the “old jail” large yard. The whole court was “cracked and missing portions,” Mr. Hamilton explained in his court complaint. During the game, he stepped on crumbled concrete and twisted and dislocated his knee, also suffering a torn meniscus. 

The injury caused “excruciating pain” and was compounded by poor medical treatment, according to his court complaint. The medical center said he should receive a knee stabilizer and an MRI for further evaluation. The jail sent him back to his cell with an ace bandage and crutches.

Mr. Hamilton’s pro se court complaint recounted that, unable to navigate stairs or the dilapidated concrete floors, he could not go outside or even move around without numbness and throbbing pain.  The showers were up a two-and-a-half foot step, and had slippery floors and no grab bars.  After family visits, guards strip searched him, making him stand on the injured knee because there were no grab bars or seats in the search area.

When he tried to ask for help, according to Mr. Hamilton, the sergeant said, “I’m sick of you f—ing crybabies this is jail handle it.” So Mr. Hamilton filed an ADA case in court, on his own. The district court dismissed his complaint, ruling that the knee injury was temporary, so it could never qualify as a disability under the ADA.[2]  The appellate court disagreed.

“[A] short-term injury can qualify as an actionable disability under the ADA.”

Judge Chin, United States Court of Appeals for the Second Circuit[3]

Courts Try to Restrict Covered Disabilities; Congress Disagrees

The first judge’s mistaken ruling is not particularly surprising. For years, employers, governments, and other entities sought to narrow ADA obligations by arguing that temporary disabilities were categorically not covered by that law—and courts frequently accepted this argument.[4]  This judicial narrowing culminated in a 2002 Supreme Court case held that a covered disability must involve an impairment that is “permanent or long term.”[5]

Congress disagreed.  It said this interpretation was too restrictive, passing the ADA Amendments Act in 2008 to clarify that the ADA was intended to cover a broad range of disabilities. [6]

Courts Are Slow to Catch Up

As evidenced by Mr. Hamilton’s experience, more than a decade after the amendment, confusion, or bias, about temporary disabilities persists. One court in 2017 noted lawyers continue to make arguments “not based on current law.”[7] Yet some courts have continued, incorrectly, to accept these arguments and cite old law—ruling that temporary disabilities are categorically excluded. [8] This is what happened in Mr. Hamilton’s case, until Mr. Hamilton, represented by the nonprofit law firm Rights Behind Bars, appealed. State courts, applying local analogs to the ADA, have sometimes joined the fray.[9]

The legal confusion seems to be getting sorted out. [10] In Hamilton, the Second Circuit noted that several other appeals courts—the First, Fourth, and Seventh Circuits—agreed that injuries lasting less than six months could be qualifying disabilities. The Tenth Circuit also recently reversed a lower court, noting that the lower court incorrectly believed a temporary disability could not qualify.[11] 

Bipartisan Support for a Broader ADA

Like the ADA itself, the ADA Amendments Act was passed in 2008 with a “sweeping display of bipartisan support.” This bipartisan Congress explained that its intent was to shift the focus away from “extensive analysis” of “whether an impairment is a disability under the ADA.”

The bipartisan instinct to limit such subjective analysis has a sound basis. Studies have shown that even doctors have demonstrable racial bias in judging the seriousness of a medical condition. Lawyers are not immune. All the more reason to follow legislative direction in the preamble to the 2008 admenments:

[T]he primary object of attention in cases brought under the ADA should be whether entities covered under the ADA have complied with their obligations.

ADA AMENDMENTS ACT OF 2008, PL 110–325, September 25, 2008, 122 Stat 3553

There is thus broad consensus in this country that people with limitations deserve accommodation. This is what makes the recent government analysis, suggesting that only “long COVID” qualifies for protection, problematic. It reverts to the pre-ADA Amendments Act parsing of whether there is a condition deemed deserving of coverage, rather than whether the ADA has been followed.

It is surely not terribly controversial to say that people should not be subject to discrimination because they have COVID, and they should be able to ask for reasonable accommodations if they need them because of COVID, regardless of whether they are diagnosed long-haulers. Unsurprisingly, there may be racial bias in who is diagnosed with “long COVID.” Civil rights laws like the ADA should not compound that bias.

The ADA needs limits, and it has them. The limits are not in an arbitrary narrow set of conditions it covers, but in careful balancing of rights against the burdens placed on employers, governments, and companies. It is time to listen to Congress and move the focus back to this reasonable balance rather than legalistic exclusions.

[1] 3 F.4th 86 (2d Cir. 2021).

[2] Hamilton v. Westchester Cty., No. 18-CV-8361, 2020 WL 917214, at *15 (S.D.N.Y. Feb. 25, 2020), aff’d in part, vacated in part, remanded, 3 F.4th 86 (2d Cir. 2021).

[3] 2021 WL 2671311 at *5.

[4] See, e.g., Stephens v. Thomas Pub. Co., 279 F. Supp. 2d 279, 283 (S.D.N.Y. 2003) (Chin, J.) (collecting cases).

[5] Toyota Motor Mfg., Kentucky, Inc. v. Williams, 534 U.S. 184, 198 (2002), overruled by statute, ADA Amendments Act of 2008, Pub.L. 110–325, 122 Stat. 3553 (2008).

[6] ADA Amendments Act of 2008, Pub.L. 110–325, 122 Stat. 3553 (2008).

[7] Wainberg v. Dietz & Watson, Inc., No. CV 17-2457, 2017 WL 5885840, at *2 (E.D. Pa. Nov. 28, 2017).

[8] See, e.g, Lewis v. Baltimore City Bd. of Sch. Commissioners, 187 F. Supp. 3d 588, 598 (D. Md. 2016) (“A temporary impairment generally does not qualify as a disability under the ADA); Woodruff v. Red Classic Transit, LLC, No. 3:19-CV-00050, 2019 WL 4670789, at *3 (W.D.N.C. Sept. 24, 2019) (“Plaintiff’s impairment was temporary and does not qualify as a disability.”) . Both of these cases rely on a pre-ADAAA case, Pollard v. High’s of Baltimore, Inc., 281 F.3d 462, 468 (4th Cir. 2002)).

[9] Larison v. Home of the Innocents, 551 S.W.3d 36, 43 (Ky. Ct. App. 2018) (holding that Kentucky follows pre-amendment ADA definition, but stroke causing one-year impairment was sufficiently severe and long to qualify as a covered disability). Roberts v. City of Houston, No. CV H-14-0903, 2017 WL 1215428, at *3 (S.D. Tex. Mar. 31, 2017), aff’d, 738 F. App’x 306 (5th Cir. 2018) (“[T]emporary conditions are generally not sufficient to rise to the level of a disability under the ADA.”) (citing Haralson v. Campuzano, 356 F. App’x 692, 698 (5th Cir. 2009)).

[10] One caveat: These cases are about actual (current or former) disabilities.  The ADA covers three kinds of disability:  actual disabilities, former (“record of”) disabilities, and perceived disability (the “regarded as” prong).  For “regarded as” cases, the ADA does not cover discrimination on the (incorrect) belief someone has a condition that is “transitory or minor.” (The statue says “transitory” conditions are those lasting less than six months.) 42 U.S.C. § 12102(4)(B); see Hamilton, 2021 WL 2671311 at *5.

[11] Skerce v. Torgeson Elec. Co., No. 19-3244, 2021 WL 1541506, at *5 (10th Cir. Apr. 20, 2021).