Some employees believe that any physical problems that linger after surgery or other medical treatment are disabilities that entitle them to ADA protection.
That’s not true. Disabilities are permanent. Temporary, post-surgical problems don’t qualify.
Recent case: Jennifer worked in a doctor’s practice for several years and took lots of medical leave for various problems. She also had a spotty evaluation record, with nearly every appraisal criticizing her work output and frequent absences unrelated to medical leave.
Her final medical leave was for knee surgery. She returned to work part-time and was then terminated during a reduction in force. The doctor said the employees cut were those with the poorest performance histories.
Jennifer sued, alleging she had really been terminated because she was disabled.
Jennifer argued that she was disabled at the time because she could only work part time and needed an accommodation to go to doctors’ appointments. Plus, she had been informed she would need additional knee surgery.
The court dismissed her case. It reasoned that the ADA’s protection only extends to employees with permanent conditions that substantially limit major life activities. Post-knee surgery problems don’t make the cut. (Zurenda v. Cardiology Associates, No. 3:10-CV-0882, ND NY, 2012)
Final note: Jennifer didn’t allege that herhad been violated. That may have been because she wasn’t eligible; she had used up her 12 weeks already for some other undisclosed reason.
The standards for determining whether an employee has a serious health condition under theare far more lenient than the ADA standards. Post-surgery restrictions qualify as serious medical conditions under the FMLA—and employees fired for exercising their FMLA rights can sue.
Even then, an employer’s legitimate reduction in force is a defense if FMLA usage wasn’t a factor in deciding who goes and who stays.