Under the ADAAA, Individual in Remission From a Disabling Condition Does Not Have to Be “Substantially Limited” at the Time of Complained-of Adverse Action

The ADA Amendments Act of 2008 (ADAAA) clarified the ADA in a number of ways.  In one significant clarification, the ADAAA provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.”  Based upon that wording, a federal district court in the Northern District of Indiana has held that an employee with cancer is considered to be disabled under the Act, even if his condition is in remission at the time of he alleged adverse action taken against help by his employer.  Hoffman v. Carefirst of Fort Wayne Inc., N.D.Ind., No. 1:09-cv-00251, 8/31/10.

Stephen Hoffman worked as a service technician in 2007 when he was diagnosed with Stage III Renal Carcinoma, and underwent surgery to remove his left kidney.  Hoffman took time off work for surgery and recovery, and returned to his job on January 2, 2008, without restrictions or limitations.  As a service technician, Hoffman delivered home medical devices, such as wheelchairs and oxygen tanks to patients.  Although his job description with Carefirst required him to be “available after hours and on call,” his typical schedule was 9 a.m. to 5 p.m. on weekdays.  Hoffman worked his regular schedule from January 2008 through January 2009, and did not miss significant time from work, other than for regular doctor visits.

On January 26, 2009, Hoffman met with his supervisor, David Long, who told Hoffman that the company had acquired a contract with a hospital system that would require service technicians, including Hoffman, to work substantial amounts of overtime each week, to do a night shift once and week, and to be on call on weekends.  Hoffman expressed concern that the required schedule would “put me in the grave.”  Hoffman then obtained a note from his doctor that limited him to “8 hours/day, 5 days/week.” 

Although Long initially told Hoffman that Hoffman would be fired, he then retracted that statement and said that he company would allow Hoffman to work a 40 hour a week schedule out of its Fort Wayne office.  Hoffman objected to that, based on the two hours of additional commuting time that the new location would add to his workday.  He told Long that “you have already fired me,” and asked Long to communicate directly with his (Hoffman’s) attorney.

Hoffman then sued Carefirst under the ADAAA, alleging that his renal cancer – which admittedly was in remission at the time of his firing – was a disability.  Not surprisingly, Carefirst argues that Hoffman was not disabled, based on the facts that Hoffman had returned to work without restrictions, had worked a full schedule for a year, and did not miss significant time from work during that period.  Because the ADAAA went into effect on January 1, 2009, there is little case law under those amendments.  However, based upon the clear wording of the Act (that disability includes impairments “in remission” if the impairment would be a substantial limitation when active), the court held that Hoffman did not need to show that he was substantially limited in a major life activity at the actual time of his termination, because his cancer would have substantially limited him, had it been active.  It therefore found him to be “disabled” for purposes of the ADAAA, and denied Carefirst’s motion for summary judgment.

One other aspect of this case should be noted by employers: there was no evidence that Carefirst carefully reviewed and discussed possible accommodations with Hoffman before telling him that his only option was working out of another office.  Had Carefirst provided evidence that any other accommodation would have created an “undue hardship” for the company, the lower court may have decided that although Hoffman was disabled, Carefirst had offered an appropriate accommodation that was refused by Hoffman.

While it remains to be seen whether this decision is upheld on appeal, the case provides to employers an insight that courts are likely to interpret this particular provision of the new amendments very literally.  An impairment from which an individual has recovered, but which may reoccur is likely to be viewed as a disability under the ADAAA.