In considering an employee’s request for FMLA leave to care for an adult child because of that child’s serious health condition, the employer must first consider if the son or daughter, in fact, has a disability as defined in the ADA. Pursuant to the clear language of the ADAAA, the definition of disability “shall be construed in favor of broad coverage,” 42 U.S.C. § 12102(4), and the EEOC has made clear that the issue of disability “should not demand extensive analysis.” 29 C.F.R. § 1630.

The reflexive denial of accommodation requests because the employee’s disabling condition is temporary is a thing of the past. To put the Summers decision in context, remember that Congress implemented the American with Disabilities Act Amendments Act (“ADAAA”), substantially broadening the definition of “disability” to be “in favor of broad coverage of individuals[,]” 42 U.S.C. § 12102(4)(A). Essentially, Congress dictated that the ADA should be interpreted in its most liberal sense and that all terms should be construed towards covering impaired employees.

Further, the court found that renal cancer, when active, 29 C.F.R. § 1630.2(h)(1) “substantially limits” the “major life activity” of “normal cell growth.” See 42 U.S.C. §12102(4)(A) & (B); 42 U.S.C. § 12102(2)(B). Therefore, the fact that Norton may have been in remission when he returned to work at the defendant is of no consequence.

First, the Court explained that under the ADA, a “disability” is defined in three ways, including: (a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. Id. at *4 (citing 42 U.S.C. § 12102(1)). For purposes of this definition, “major life activities” include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.

The Court’s analysis turned on the ADA’s “plain text,” which defines disability as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Id. at 3 (citing 42 U.S.C. § 12102(1)). The Court ruled that the ADA’srequirementof“having such an impairment” “plainly encompasses only current impairments, not future ones.”

Under the post-2008 amendments to the ADA, “the definition of a disability … shall be construed in favor of broad coverage.” 42 USC § 12102(4)(A). The ADA defines a disability as “a physical or mental impairment that substantially limits one or more major life activities.”

42 U.S.C. § 12111(8).A “disability” is defined by the ADA as (1) a physical or mental impairment that substantially limits one or more major life activities; (2) a record of such an impairment; or (3) being regarded as having such an impairment. 42 U.S.C. § 12102(1)(A)-(C).To establish that an individual is “regarded” as having an “impairment” under the ADA, the individual must show that he or she was discriminated against “because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.” 42 U.S.C. § 12102(3)(A).

However, the circuit court held that Gogos alleged sufficient facts plausibly showing that he is disabled. The ADA defines “disability” as a physical or mental impairment that substantially limits one or more major life activities …; (B) a record of such an impairment; or being regarded as having such an impairment … . 42 U.S.C. § 12102(1). Under the 2008 amendments, a person with an impairment that substantially limits a major life activity, or a record of one, is disabled, even if the impairment is “transitory and minor” (defined as lasting six months or less).

Step One: Is the child disabled? Start with the ADA definition of a disability: “an impairment that substantially limits one or more major life activities . . .” 42 U.S.C. § 12102(1). Remember that Congress made this extremely broad with the Americans with Disabilities Act Amendments Act (ADAAA).

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