What if you had an employee who kept coming to work with head lice?  What should you do?  Employment lawyers get all kinds of questions about the Americans with Disabilities Act—and some of these can give you a serious case of the heebie-jeebies.  Here is a short tutorial on the basics of navigating this important law, seen through the lens of that bane of parents everywhere: the louse.

Under the ADA, a disability is (1) “a physical or mental impairment” that (2) “substantially limits one or more of the major life activities of such individual.”  Under this test, the claimant must first prove that he or she has a physical or mental impairment, which is defined as “any physiological disorder or condition.”  But what qualifies as a physiological disorder or condition?   According to the Merriam-Webster dictionary, “physiological” means relating to “the organic processes and phenomena of an organism or any of its parts.”  Given this breadth, it is difficult to think of any “disorder” or “condition” that affects the human body that would not qualify.  However some courts, such as the Sixth Circuit in E.E.O.C. v. Watkins Motor Lines, Inc., have focused more on the “disorder” element of the EEOC’s definition.  In Watkins, the court held that a man’s obesity did not qualify as an ADA impairment because a “physical characteristic must relate to a physiological disorder in order to qualify as an ADA impairment.”  According to the Watkins court, merely having a physical characteristic beyond the range of normal is not enough—it has to be related to a “disorder.”  On the other end of the spectrum, in Bragdon v. Abbott, the U.S. Supreme Court addressed the question of whether “asymptomatic” HIV infection qualified as an impairment.  It answered in the affirmative, and held that HIV, which “causes immediate abnormalities in a person’s blood”—“must be regarded as a physiological disorder . . . from the moment of infection.”  Certainly, head lice drink blood, live on the scalp, and cause irritation.  They thus “affect” the human circulatory and integumentary systems and probably qualify as a physiological disorder.  Moreover, the regulations favor the conclusion that the threshold question of whether a given condition qualifies as an impairment be interpreted broadly and without “extensive analysis.”

Accepting the proposition that head lice are a physical impairment, we then turn to the second prong of the test: whether the impairment substantially affects a major life activity.  Major life activities are functions such as “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”  A major life activity also “includes the operation of a major bodily function.”

The first question is whether head lice affect a major life activity at all.  The mere presence of head lice, at first blush, would not seem to affect an individual’s ability to undertake major life activities such as seeing, walking, standing, breathing, learning, and so on.  But the question is not so easy.  For example, the itchiness caused by head lice could cause sleeplessness.  If the affected person was unable to sleep due to the lice, this could qualify as an effect on the major life activity of sleeping.  Additionally, head lice, simply by existing and making their home on the human head, laying eggs, and drinking small amounts of blood, most likely do in some way affect “the operation of a major bodily function.”  This conclusion takes a very broad reading of the meaning of the statute; but Congress, in enacting the ADA Amendments Act, specifically directed that its intent was to “reinstat[e] a broad scope of protection” under the ADA.

Assuming, then, that head lice affect either a major life activity (i.e. sleeping) and/or a major bodily function (i.e., having blood flow unimpeded through the scalp, having skin that is not bitten, having hair follicles that are undisturbed by nits and lice), the second question becomes whether the head lice “substantially limit” one or more of those major life activities.

Intuitively, it seems that the fact that head lice can be exterminated or are a “transitory and minor” condition would be a defense: but the regulations do not support such a position.  In fact, the regulations explicitly state (1) an “impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,” and (2) even if an impairment is “transitory and minor,” this is not necessarily an exception to the “actual disability” prong.  An impairment that is transitory or short lived “can be substantially limiting.”  And again, the regulations emphasize that the question of whether a given condition qualifies as an impairment is to be interpreted broadly and without “extensive analysis.”

Courts have said that whether a person is disabled by a given condition must be determined in a case-by-case manner.  As explained, the ADA Amendments Act of 2008 mandated that the definition of disability is to be “construed in favor of broad coverage,” and rejected the idea that there is a demanding standard for qualifying as disabled.  “Nonetheless, not every impairment will constitute a disability.”  An impairment is considered a disability if it “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.”

An impairment that is of “short duration and negligible long-term impact” may not be considered “substantially limiting.”  Temporary, non-chronic impairments of short duration, such as “broken limbs, sprained joints, concussions, appendicitis, and influenza” are usually not considered disabilities—although they can be.  As the appendix to the EEOC’s updated regulations states, “impairments that last only for a short period of time are typically not covered, although they may be covered if sufficiently severe.”  Indeed, as one court has held, despite the ADA Amendments and their explicit broadening of disability coverage, “minor, transitory impairments” that are not severe are almost certainly still not ADA-covered disabilities.  “[E]ven under the relaxed ADAAA standards, a plaintiff is still required to plead a substantially limiting impairment.”

The inquiry is complicated by the nature of head lice.  Under the regulations, “the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures.”  Despite the fact that head lice can be removed relatively quickly and easily by undergoing appropriate treatment, technically, head lice are a condition that is either permanent or long term.  This is because they do not go away on their own: to get rid of head lice, the affected individual would have to make efforts to remove them.  Thus, head lice are not truly a “transitory” condition.

Even so, the ADA nevertheless still requires that the impairment “substantially” limit the ability of the individual to perform a major life activity or the operation of one of the individual’s major bodily functions.  A person with head lice—barring extreme scratch-related infection and itch-related insomnia—can perform all of the same activities as a person without head lice.  Additionally, the effect of the lice on the operation of the circulatory and skin systems is probably not “substantial,” with many affected by lice feeling only a mild itch or nothing at all (barring a severe reaction, sores, or inflammation).  The amount of blood taken throughout the day is relatively small (although, depending on the length of the infestation one could imagine that the amount of blood adds up over time) and some people have no inflammation—just itching.

One could argue that it does not require “extensive analysis” to reach the common sense conclusion that the “impairment” effected by a typical case of head lice is probably not the sort of physical impairment that Congress intended to cover when it created the ADA and clarified the ADA through the Amendments.  On the other hand, because head lice likely meet the first two prongs of the test in that they are (1) a physical impairment that (2) affects life activities or major bodily functions; the question of whether they constitute a disability thus hinges on whether the head lice “substantially limit” those life activities or major bodily functions.  Here, the individual facts of the case will be highly relevant and will determine whether the person’s head lice qualifies as a disability.  Given the liberal standards for defining disability under the ADA Amendments Act, a court might very well conclude that head lice is a covered disability.

If you are facing a claim of disability that, like head lice, falls in the “grey area,” it is wise to start the interactive process and talk to an employment lawyer for your next steps.

Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers assess their obligations under the ADA. If you or your organization would like more information on the ADA or any other employment issue, please contact an attorney in the Labor and Employment practice group.