In Connecticut, employees with disabilities are protected from discrimination by both the federal Americans with Disabilities Act (“ADA”) and by the Connecticut Fair Employment Practices Act (“CFEPA”). Some disabilities are obvious and permanent; for instance, no one would dispute that an amputated limb qualified as a disability under the law.
However, employers are sometimes faced with claims of disability and requests for accommodation in more ambiguous situations, such as a broken bone, muscle sprain, torn ligament, bone spur, or the like. These conditions have been referred to as “transitory impairments,” and are ordinarily considered to be outside the protection of the disability discrimination laws. Nevertheless, the legal definitions of disability are not lists of specific conditions or maladies, but rather require consideration of the effect a condition has on the particular employee.
The ADA defines a disability as an impairment that substantially limits one or more major life activities. The statutory definition does not refer to duration, but Equal Employment Opportunity Commission regulations state that temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are “usually” not disabilities. The regulations give as examples broken limbs, sprained joints, concussions, appendicitis, and influenza. But note the equivocation of the phrase “’usually’ not disabilities.” Courts have found that serious complications, relapses or secondary effects can transform an otherwise relatively routine medical matter into a disability entitled to legal protection.
The Connecticut Fair Employment Practices Act has a somewhat different approach to the definition of disability. Under the CFEPA, a disability is a handicap, infirmity or impairment, but there is no reference in the statute to major life activities. But also unlike the ADA, there is a durational element to the CFEPA definition; the disability must be chronic.
In considering whether particular conditions were protected, Connecticut courts have resorted to standard dictionary definitions for handicap/infirmity/impairment and for chronic. For example, a handicap is a disadvantage that makes achievement unusually difficult, or limits the capacity to work, whereas chronic is of long duration, as distinguished from acute. Conditions lasting two or three months have been held to be of short duration, and therefore not chronic. For example, an employee suffering from anemia who received a transfusion, took a three-month leave of absence for recuperation, and then returned to work was held not to have a chronic disability.
Moreover, both the federal and state laws recognize that employers may incur liability for discrimination based on a perception that an employee is disabled, even if the employee’s physical condition might not meet the statutory definition. So an employer who takes an adverse action against an employee based on the belief that the employee can’t perform his/her job, without having established that the belief is correct, could be liable for discrimination even though the employee is not actually “disabled” under the statutes.
So the not-so-simple answer to the question posed in the title of this article is that a broken arm is not “usually” a disability, but in some circumstances it may be one. The same is true of similar, seemingly transitory conditions. Employers should consider the specific facts of an employee’s claim of disability and request for accommodation before making a determination as to the employee’s legal rights and the employer’s legal obligations.