Parent and Educator Resource Guide to Section 504 in Public Elementary and Secondary Schools
Regarded as having a disability.
A student could also meet the definition of an individual with a disability by being regarded as a person with a disability.29 This could mean, for example, that the student does not have any impairment, but is treated by others as having a disability.
For example, a person who does not have a physical or mental impairment that substantially limits a major life activity but who is not allowed on the soccer team because of the false belief that the student has the human immunodeficiency virus (HIV) would be regarded as having a disability.30 Note, as stated previously, although the student with HIV in this instance is not entitled to receive aids and services, the student is nevertheless protected from disability-based discrimination under Section 504’s general non-discrimination requirements.
An individual does not fall within the definition as someone regarded as having a disability if the physical or mental impairment is transitory (that is, having an actual or expected duration of six months or less) and minor.31 For example, if a person has a broken leg but is expected to fully recover within six weeks, and the injury is considered minor, that person is not regarded as a person with a disability even if others treat the person as if he or she has a disability.32
Note, while Section 504 does not require a school to take specific action if a student has a physical or mental impairment that is transitory and minor, Section 504 also does not prohibit schools from going beyond what the law requires to assist a student.
The school district could, for example, allow the student to take a bus to school, when the student with the broken leg typically walks to school, or provide a pass to allow the student to use the faculty elevator–which is typically off-limits for students–while the student uses crutches.
29 34 C.F.R. § 104.3(j)(2)(iv).
30 Department of Justice: ADA, Title II Technical Assistance Manual, II-2.6000, www.ada.gov/taman2.html#II-2.6000; 34 C.F.R. pt. 104, App. A.
31 Amendments Act § 4(e) (codified as amended at 42 U.S.C. § 12102). A transitory and minor impairment is a minor impairment with an actual or expected duration of 6 months or less. 42 U.S.C. § 12102(3)(B). An episodic impairment, on the other hand, is a disability if it would substantially limit a major life activity when active. Id. § 12102(4)(D). Neither the ADA statute nor regulation indicates a time limitation for an episodic impairment, whereas a transitory impairment is 6 months or less.
32 Impairments that are episodic in nature or in remission are different from temporary impairments. Temporary impairments could be a disability or could not be a disability, depending upon the extent of the limitation and the length of time. Impairments that are episodic in nature are in remission or are ongoing, while temporary impairments exist for a limited time span. A temporary impairment caused by an injury (for example, a broken leg) may be a covered disability under the ADA Amendments Act if it is sufficiently severe to substantially limit a major life activity. See Summers v. Altarum Institute Corp., 740 F.3d 325 (4th Cir. 2014); see also OCR, Protecting Students with Disabilities: Frequently Asked Questions About Section 504 and the Education of Children with Disabilities (FAQ 34) (last modified Oct. 16, 2015), www.ed.gov/ocr/504faq.html.
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