Federal Appellate Courts Apply Different Analyses of “Transitory and Minor” Impairments Under the ADA

The U.S. Court of Appeals for the Fifth Circuit found that an employee’s impairment lasting less than six months was “transitory and minor,” and therefore she was not entitled to the protections of the Americans with Disabilities Act. The Fifth Circuit’s holding, however, is at odds with that of the Third Circuit, which we discussed in the June 2020 E-Update.

The Americans with Disabilities Act sets forth a three-prong definition of “disability”: (1) the individual has a physical or mental impairment that substantially limits one or more of their major life activities; (2) they have a record of such an impairment; or (3) they are regarded as having such an impairment. Under the ADA, an employer may assert the defense that “transitory and minor” impairments do not fall within the “regarded as” prong. “Transitory” is defined as lasting six months or less, while “minor” is undefined.

In Lyons v. Katy Independent School District, the Fifth Circuit held that “[a]ny impairment as a result of [the employee’s] lap band surgery was objectively transitory  and  minor  by  her  own  admission, because the actual or expected duration of any impairment related to the lap band procedure was less than six  months.” This stands in striking contrast to the Third Circuit’s approach, in which the issue of whether an impairment is “transitory” is separate from whether it is “minor,” and an impairment that is of short duration, while “transitory,” may not necessarily be “minor.” The Third Circuit expressly rejected the employer’s conflation of the “transitory” and “minor” requirements in applying the six-month limitation. Thus, these cases illuminate a circuit split on the interpretation of the ADA’s “transitory and minor” provision.