Under ADA, Whether Impairment is “Minor” is Separate Inquiry from “Transitory.”

The U.S. Court of Appeals for the 3^rd Circuit stated that the exemption of “transitory and minor” impairments from the protections of the Americans with Disabilities Act requires an employer to establish that the impairment in question is both transitory and minor.

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 6 months or less, while “minor” is undefined.

In Eshleman v. Patrick Industries, Inc., the employee had surgery to remove a nodule on his lung and a respiratory infection, which collectively lasted less than 6 months. Conflating “transitory” with “minor” in applying the 6-month limitation, the employer argued that the employee was not disabled within the meaning of the ADA. The 3^rd Circuit, however, noted that, as set forth in the ADA regulations, an employer must establish that the impairment was both transitory and minor. An impairment that is transitory but not minor falls outside the exemption. Accordingly, it was necessary to separately evaluate whether the employee’s impairment was “minor,” which is a determination that must be made on a case-by-case basis. According to the 3^rd Circuit, relevant factors include the symptoms and severity of the impairment, the type of treatment required, the risk involved, and whether any kind of surgical intervention is anticipated or necessary—as well as the nature and scope of any post-operative care.