• Court Rules Cancer in Remission is Disability under the ADAAA
  • September 14, 2010 | Authors: Christopher Calsyn; James E. Kellett; Kendra D. Miller
  • Law Firms: Crowell & Moring LLP - Washington Office ; Crowell & Moring LLP - Irvine Office ; Crowell & Moring LLP - New York Office ; Crowell & Moring LLP - Irvine Office
  • In one of the first cases to rule on the extent to which the Americans with Disabilities Amendments Act of 2008 ("ADAAA") broadens what conditions are considered disabilities, a federal district court in Indiana recently ruled that a plaintiff's past bout of renal cancer is considered a disability for the purposes of the ADA despite the fact that his cancer had been in remission for over a year and the plaintiff had been working for the defendant during that time with no restrictions. 

    In Hoffman v. Carefirst of Fort Wayne Inc. d/b/a Advanced Healthcare, No. 1:09-cv-00251, 2010 U.S. Dist. LEXIS 90879 (N.D. Ind. Aug. 31, 2010), the Court found that the provision in the ADAAA that "an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active" clearly demonstrated that the plaintiff qualified as disabled and that the plaintiff was not required to show he was substantially limited in a major life activity at the time of the adverse employment action.  Thus, the employer's duty to engage in the interactive process to attempt to find a reasonable accommodation was triggered when the plaintiff presented the employer with a note from his doctor stating he should be limited to a 40-hour work week because of his past cancer.  The plaintiff produced this note in response to the employer's stated intention to require him to go from working a 40-hour week to 65-70 hour weeks to service a new contract the employer had just signed with a new client. 

    Prior to this exchange, the employee had been back at work for approximately a year after beating Stage III renal cancer and had been working a 40-hour week with no restrictions from his doctor.  In response to the plaintiff's note requesting an hours limitation, the plaintiff's supervisor at first told him he needed to work the overtime like other technicians in his job would be doing on this contract or resign.  In response, the plaintiff told his supervisor he would not resign but could not work the 65-70 hour week.  Later that same day, the supervisor told the plaintiff he could continue to work a 40-hour week but would need to do so out of the company's Fort Wayne, Indiana office instead of the home office the plaintiff had been utilizing with the employer's consent for some time.  Working out of the Fort Wayne office would have required a two to three hour uncompensated commute each day for the plaintiff and he, therefore, rejected the employer's suggested accommodation.  The plaintiff, thereafter, never returned to work, nor did he ever consult with his doctor regarding the possibility of working a 40-hour week in the Fort Wayne office.

    In denying summary judgment, the Court relied heavily on the fact that the employer failed to present any evidence that the plaintiff's requested accommodation - to be able to continue working a 40-hour week out of his home office - would have presented an undue hardship for the company.  Instead, the employer focused its briefs in support of its motion for summary judgment on whether or not the plaintiff qualified as disabled and gave comparatively short shrift to its minimal efforts to accommodate the plaintiff's disability.  This failure - both to actively engage in the interactive process and to demonstrate the alleged undue burden caused by the requested accommodation - was fatal to the employer's attempts to dismiss the plaintiff's claims. 

    In following the clear language of the ADAAA, the Court's decision reinforces that employers must be mindful that under the ADAAA, many more conditions are likely to be considered disabilities - even those that may have been dormant for some time.  Thus, employers need to be prepared to engage in the interactive process with employees requesting accommodations even where the employee's impairment is not immediately obvious.  Employers can and should still require sufficient medical documentation of the condition from the employee and should document completely the steps taken in the interactive process including conversations with the employee regarding potential accommodations and any requests that may be unduly burdensome.  Further, should an employer determine there is no reasonable accommodation of the particular employee's condition, the employer should consult with counsel prior to taking any action against the employee.