Is A Transitory But Non-Minor Health Condition A Disability Under Americans With Disabilities Act?

For the past two decades, our Marion County, Florida wrongful termination attorneys have fought for the rights of wrongful termination victims. Through their extensive experience representing wrongful termination victims, our Ocala, Florida wrongful termination lawyers know that employees are often fired because employers mistakenly believe they are incapable of performing their job due to a health condition. In some cases, however, employees who are fired under such circumstances may have a wrongful termination claim under the Americans with Disabilities Act (ADA). In this article, our Marion County, Florida wrongful termination attorneys explain how the decision in Eshleman v. Patrick Industries, Inc., 961 F.3d 242 (3d Cir. 2020) demonstrates that the ADA protects employees from being fired because an employer mistakenly believes they are incapable of performing their job due to a health condition, so long as the health condition is not transitory and minor.

Employee Rights Under ADA

The ADA prohibits employers from discriminating against employees on the basis of disability. For purposes of the ADA, an employee is disabled if he or she: (1) has a physical or mental impairment that substantially limits one or more major life activity; (2) has a record of such an impairment, or (3) is regarded as having such an impairment. The ADA defines physical impairment as including “any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more body systems.”

As observed by the court in Williams v. Phila. Hous. Auth. Police Dep’t,  380 F.3d 751 (3d Cir. 2004), the ADA includes “regarded as” claims because being perceived as disabled “may prove just as disabling” to a person as another type of physical or mental impairment. In most cases, as observed by the court in Ross v. Kraft Foods N. Am., Inc., 347 F.Supp.2d 200, 204 (E.D. Pa. 2004), “an employer regards a person as disabled when it “misinterpret[s] information about an employee’s limitations to conclude that the employee is incapable of performing” his or her job duties.

To satisfy the “regarded as” disabled prong of the ADA, employees must only show that the employer believed they had a physical or mental impairment regardless of whether or not the impairment limits or is perceived to limit a major life activity. In other words, employees do not have to prove that the perceived impairment is an actual disability or that the employer perceived the impairment as an actual disability in order to satisfy the “regarded as” disabled prong of the ADA.

The “regarded as” disabled prong of the ADA, however, does not apply to impairments that are “transitory and minor.” Thus, the ADA carves out “transitory and minor” impairments from “regarded as” claims. In other words, if the perceived impairment is transitory and minor, an employee is not protected from discrimination under the “regarded as” disabled prong of the ADA. The ADA specifies that a transitory impairment is one “with an actual or expected duration of 6 months or less.” The ADA does not define what constitutes a “minor” impairment. Under the ADA, employers bear the burden of proving that the perceived impairment is “transitory and minor.” Thus, the “transitory and minor” exception is an affirmative defense that employers must prove.

Wrongful Termination Lawsuit

In Eshleman, a man named Eshleman brought a wrongful termination lawsuit against his former employer, Patrick Industries, Inc. (Patrick Industries), pursuant to the ADA. Eshleman claims that Patrick Industries violated the ADA by firing him because Patrick Industries regarded him as disabled.

In July 2013, Eshleman began working for Patrick Industries as a truck driver. Between October 14, 2015, and December 14, 2015, Eshleman took medical leave to undergo surgery to remove a nodule from his left lung. He told his supervisor that the nodule had to be removed and tested for cancer. After two months of medical leave, Eshleman returned to work in his full capacity, without restrictions. However, about six weeks later, Eshleman suffered a severe respiratory infection lasting from January 27, 2016, until January 31, 2016. With his doctor’s approval, Eshleman returned to work in his full capacity on February 1, 2016. At the end of his shift on his second day back, Patrick Industries fired him.

Eshleman claims that the real reason for his termination was that he was regarded as disabled in violation of the ADA. According to Eshleman, Patrick Industries fired him because it “perceived that he suffered from a long-term or chronic medical condition which would affect his attendance in the future, as it had in the immediate past, due to what [it] perceived as continuing medical issues.”

The trial court dismissed Eshleman’s wrongful termination claim and held that Eshleman was not protected by the “regarded as” disabled prong of the ADA because his impairment lasted less than six months and was, therefore “transitory and minor.” On appeal, Eshleman conceded that his actual impairments—surgery to remove a nodule from his lung and a severe upper respiratory infection—were transitory because they lasted less than six months. However, Eshleman contended the trial court was nonetheless required to separately evaluate whether his impairment was “minor” for purposes of the ”transitory and minor” defense.

Condition Must Be Both Transitory & Minor

The Third Circuit agreed with Eshleman and reversed the trial court’s dismissal of Eshleman’s wrongful termination claim. In doing so, the appellate court ruled that the trial court improperly failed to conduct an “independent analysis into whether Eshleman’s impairment was minor, apart from whether it was transitory.” In other words, the Third Circuit determined that whether an impairment is “minor” is “a separate and distinct inquiry” from whether the impairment is “transitory” under the “regarded as” disabled prong of the ADA.

At the outset of its opinion, the Third Circuit explained that the “transitory and minor” defense to the “regarded as” disabled prong of the ADA requires an employer to establish “that the perceived impairment is both transitory and minor.” In other words, transitory and minor are “separate and distinct elements” of the “transitory and minor” defense and an employer must prove both elements to establish the “transitory and minor” defense. Thus, the court of appeals pointed out that a minor injury lasting longer than six months “is not ‘transitory and minor’ because it meets only the ‘minor’ prong of the exception but is not transitory.” Correlatively, “an impairment that is transitory because it lasts less than six months but is objectively non-minor must also fall outside the ‘transitory and minor’ exception.”

In applying these principles, the Third Circuit found that the trial court improperly “conflated ‘transitory’ and ‘minor’ by mechanically applying the six-month limitation for ‘transitory’ claims to the definition of ‘minor.’ ” In other words, instead of “considering whether Eshleman’s impairment was minor separately from whether it was transitory,” the trial court improperly ruled that because Eshleman’s impairment was transitory because it lasted less than six months, Eshleman’s condition was also minor.” Because “even minimally invasive lung surgery is still thoracic surgery,” the appellate court reasoned, “it is plausible that Eshleman’s lung surgery was non-minor,” even if transitory.

The Third Circuit also noted that Eshleman does not allege that Patrick Industries “understood his impairment to be anything other than a one-time surgery.” Rather, Eshleman’s complaint “contains plausible allegations that Patrick Industries regarding his series of recent medically-related absences as signs of a continuing medical condition that essentially rendered him damaged goods and therefore unemployable.” Thus, the trial court also improperly “failed to evaluate whether Eshleman’s perceived chronic medical condition, distinct from his lunger surgery, was objectively transitory and minor.”

Consequently, the Third Circuit concluded that “Eshleman’s allegations, which are premised not only on the lung surgery but also a close-in time subsequent ailment affecting the same system of the body, plausibly plead a non-minor perceived impairment.”

Wrongful Termination Lawyers In Ocala, FL

Based in Ocala, Florida, and representing workers throughout Florida, our wrongful termination attorneys in Marion County, Florida have dedicated their practice to representing wrongful termination victims. If you have been fired due to a health condition that is not transitory and minor or has questions about your rights as a wrongful termination victim, please contact our office for a free consultation with our wrongful termination lawyers in Ocala, Florida. Our employee rights law firm takes wrongful termination cases on a contingency fee basis. This means that there are no attorney’s fees incurred unless there is a recovery and our attorney’s fees come solely from the monetary award that you recover.