This blog entry can be divided neatly into two parts. In the first part, I play a game of true false based upon the issues that arose in the recent case of Attiiogbe-Tay v. Southeast Rolling Hills LLC, which recently came down from the United States District Court of Minnesota. The second part explores the reasoning of the United States District Court of Minnesota in this case. Think of part one as the users guide and part two as the in-depth analysis. You are free to focus on either part one, part two, or even both depending upon your preference.

Part I

Let’s play a game of true-false.

1. The term “fundamental alteration” appears nowhere in title I of the ADA.

2. Proving undue hardship in the financial sense is impossible.

3. If a physician gives you restrictions on a particular job that you have and those restrictions are different from the essential functions of that job, that necessarily means that you can not perform the essential functions of the job without reasonable accommodation.

4. Transferring essential functions of a job to another employee is not required by the ADA.

5. Circumstances exist where it may not be necessary to engage in the interactive process and immediate termination can proceed.

6. Full return to work policies are still around but are deeply problematic.

7. If a person cannot do the essential functions of the job with or without reasonable accommodations at the end of FMLA leave, it is perfectly consistent with the FMLA to terminate that person though that may run you into trouble with the ADA.

Answers:

1. True

2. False

3. False

4. True

5. True but incredibly risky.

6. True.

7. True.

Explanation:

1. The term fundamental alteration appears nowhere in title I of the ADA. Rather, that is a term that is used in title II and title III of the ADA. However, it would be a mistake to say that the term fundamental alteration cannot be found in disability discrimination employment law. Rather, fundamental alteration in disability employment law has long been a staple of the Rehabilitation Act cases alleging discrimination in employment in violation of the Rehabilitation Act (see for example School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 288 n. 17). Since the ADA and the Rehabilitation Act are substantively the same, a strong argument can be made that fundamental alteration is also a part of title I when it comes to analyzing the concept of undue hardship.

2. Proving undue hardship in the financial sense is extremely difficult because under 42 U.S.C. § 12111(10)(a), whether an accommodation constitutes an undue hardship mean showing that it requires significant difficulty or expense. Such factors include considering the nature and cost of the accommodation and more importantly, the overall financial resources of the facility and the overall financial resources of the covered entity. 42 U.S.C. § 12111(10)(b)(ii),(iii) Thus, I have maintained for years that undue financial hardship is extremely difficult to show and that an entity would be much better off arguing undue hardship in the logistical sense (i.e. fundamental alteration), than it would be going with undue hardship in the financial sense.

3. Just because you have essential functions of the job and a person can no longer do those essential functions does not mean that they cannot do those essential functions with or without reasonable accommodations. You have to differentiate between assigning essential functions of the job to someone else, which is not required, v. exploring a reasonable accommodation that might work, which is required. Thus, you want to ask yourself is the only alternative to give an essential function of the job to someone else? If so, that is not required. However, if there are other means short of that for the person to accomplish the essential functions , then reasonable accommodations have to be put in place.

4. The ADA is full of cases, including this one, that say transferring essential functions of the job is not required by the ADA.

5. We have seen already that some circumstances may occur when an entity might terminate someone without engaging in the interactive process and escape liability. It’s an incredibly risky maneuver as the ADA demands that an entity engage in the interactive process once they are informed that a person with a disability is seeking reasonable accommodations, and in some Circuits, failure to engage in the interactive process is an independent cause of action. It is also possible, as the dissent makes clear in the case reference by the blog entry in this paragraph, that a plaintiff might argue that the request for extended leave is nothing more than a request to initiate the reasonable accommodation interactive process.

6. See my blog entry of December 18, 2011.

7. See this blog entry (doing this might be evidence of a lack of good faith).

Part II

The United States District Court for the District of Minnesota has made quite a splash with a decision that came down on November 7, 2013. Two separate bloggers, workplace safety and health law blog put out by Fisher Phillips and one in my blogroll (Ohio employers blog), have written on this case, and I thought it would be useful to offer my own perspective.

In this case, Attiogbe-Tay v. Southeast Rolling Hills LLC, 2013 WL 5954685 (D. Minn. November 7, 2013), the plaintiff was a licensed practical nurse employed at a senior living facility and worked the overnight shift where she was responsible for caring for 160 assisted living patients. During her employment, she began experiencing severe knee pain due to degenerative joint disease and arthritis, and on several occasions her employer questioned her about her knees asking her if she was able to complete her assigned duties. Plaintiff elected to have knee replacement surgery and was granted 12 weeks of family medical leave act leave. The employer informed her when her FMLA leave would expire and that she needed to return to work without restrictions by that date. On that date, the plaintiff returned to work and provided a note from her physician saying that she could not kneel, squat or lift more than 50 pounds, but that she was otherwise cleared to return to work. The restrictions were to be in place for six weeks.

Some other points are worth noting. First, the employee handbook said that if medical restrictions existed at the end of FMLA leave, the employer was to review and discuss the situation with the employee and determine whether the work restrictions could be reasonably accommodated. The employer never initiated a discussion of potential reasonable accommodations with the plaintiff instead terminating her and inviting her to reapply once the temporary restrictions were lifted. Second, the job description said that she was required to occasionally (between one and 33% of an eight hour shift), kneel, squat and lift up to 100 pounds and she was the only licensed practical nurse schedule for the overnight shift. Finally, the employer had spent $8000 in additional staffing costs in addition to experiencing an uneven level of care to its residents and fatigue to the other licensed practical nurses while she was on family medical leave act leave.

The court in granting the motion for summary judgment reasoned as follows:

1. The court referred to EEOC regulations as to when a function is essential. Those regulations say that a function is essential when: the position exists to perform that function; the function may only be performed by a limited number of employees; or it requires special expertise. 29 C.F.R. § 1630.2(n)(2). The employer had a document referring to the plaintiff’s position and signed by her when she began her employment stating that the employer expected her to kneel, squat, and lift up to 100 pounds were between 1% and 33% of each shift. Further, those physical tasks were inherently connected to attending to patients and failing to carry out those tasks could have dire consequences. Therefore, the plaintiff was unable to perform the essential functions of the job without reasonable accommodations.

Response: As mentioned in part one, to my mind, there is a leap of logic here. While it is true that even occasional tasks can be essential functions of the job and that it is also true that she could not do the required lifting, that does not necessarily mean that there was no reasonable accommodation whatsoever (short of transferring an essential job duty to someone else), that could be employed. For example, was there a machine available that could lift these patients? We will never know because they never explored this. It would be interesting to see what a phone call to the job accommodation network (see link in my ADA resources section), would come up with.

2. The ADA does not require an employer to reallocate or eliminate an essential function of the job to accommodate a disabled employee.

Response: No argument here.

3. An undue hardship existed because while the plaintiff was on FMLA leave the employer incurred $8000 in additional staffing costs, uneven level of care to its residents, and fatigue to the other licensed practical nurses while dealing with a relatively small staff size.

Response: As mentioned in part one, this is a lot more complicated than it looks. It is absolutely true that fundamental alteration does not appear in title I of the ADA. It is also true that employment cases dealing with the Rehabilitation Act have used that term for years. The EEOC would tell you that there are two kinds of undue hardship. The first is financial and the second is logistical. The court seem to be combining the two here. With respect to financial, it is hard to believe that $8000 for a senior living facility with hundreds of patients would be an undue financial hardship if, per the EEOC regulations, the overall financial resources of the facility and the overall financial resources of the covered entity were factored in. Second, the argument may be stronger with respect to undue hardship in the logistical sense (fundamental alteration), because of the uneven level of care to the residents and the fatigue to the other licensed practical nurses that resulted while the plaintiff was on leave.

4. The court noted in a footnote that to pursue a claim under the theory that failing to participate in the interactive process violated the ADA, the plaintiff has to show that the employee could have been reasonably accommodated but for the employer’s lack of good faith. The court said that no reasonable accommodations were available; therefore, any claim premised on failure to participate in the interactive process failed.

Response: Couple of things here. First, as we have mentioned elsewhere, it depends upon the circuit as to whether failure to engage in the interactive process is a separate cause of action under the ADA. Second, as mentioned above, before we could say that no reasonable accommodation possibly existed, I would certainly want to know what the job accommodation network might say.

Finally, two other things bear noting. First, it is too bad that the plaintiff was not in the state of Illinois because Illinois is one of those states that has a very strong tendency for finding a contract with respect to an employee handbook (see Duldulao v. St. Mary of Nazareth Hospital Center, 115 Ill. 2d 482 (1987)). Clearly, it is undisputed, that the employer did not follow its own employee handbook with respect to exploring reasonable accommodations once the FMLA leave was used up. Accordingly, in some jurisdictions, the plaintiff here could have a breach of contract claim. Second, this court has now opened up litigation as to what an undue financial hardship might mean. In this situation, they say that $8000 when combined with certain other factors will work. It remains to be seen what other dollars might work. The only disadvantage I see to undue financial hardship being used by the defense is that it would open up the defense to having to reveal its entire financial situation, which they may not want to do. The way around that of course is to not argue undue financial hardship at all, but rather focus on undue logistical hardship (i.e. fundamental alteration).

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