Terminating the “Disabled” Employee Who is Not Performing Without Inviting Lawsuits
Those of us who work regularly in the human resources/labor and employment arena wish we could discuss terminating “disabled” employees by only discussing the Americans with Disabilities Act (“ADA”). Unfortunately, this topic covers much more than just the ADA. When considering terminating an employee who is, or may be “disabled,” Minnesota employers must also consider: the Minnesota Human Rights Act (“MHRA”), Minnesota’s workers’ compensation laws, the Family and Medical Leave Act (“FMLA”) and reprisal issues.
To effectively navigate this treacherous area, the human resources professional must be familiar with each of these statutory frameworks, and mindful of a plan to avoid running afoul of any of them. This article focuses on the basic tenets of each of these statutory frameworks, a strategy for approaching terminations involving employees who are or may be disabled, and how to use an employer’s own policies and the various statutes to benefit the employer in disability discrimination and related claims.
Know The “Enemy” – That is, The Various Laws Under Which The Terminated Employee May Make A Claim
Planning the best approach to terminate a non-performing employee who may be disabled should start with a working knowledge of the recovery avenues available to that employee if she/he makes a claim. Below is a list of the issues that should be considered when assessing a termination strategy for such an employee.
I. The Americans with Disabilities Act.
a. Coverage and Definitions.
As a practical matter, the ADA applies to employers who in any way engage in interstate activity. With respect to “size” limitations, its provisions apply to employers who employ 15 or more employees 20 weeks of the calendar year (current or preceding). 
The ADA protects qualified disabled employees from discrimination. The ADA has two separate components: (1) a prohibition against differential treatment of disabled employees; and (2) an affirmative duty to reasonably accommodate disabled employees, who can perform the essential functions of their position, unless doing so would impose an undue hardship on the employer. 
Absent direct evidence of discrimination, the initial measuring stick for differential treatment is the same prima facie case applicable in any employment discrimination matter. The employee must show: (1) she/he is disabled; (2) she/he suffered adverse employment action; (3) she/he is qualified to perform her/his job; and (4) non-disabled employees are not subject to such adverse employment action (as a result, a court can infer discrimination). 
- A physical or mental impairment
- that substantially limits
- one or more major life activity; 
- a record of such impairment; 
- is regarded as having such an impairment. 
One of the questions frequently asked by employers is whether an employee who experiences extreme work place stress qualifies as “disabled” under the ADA. That deficiency, alone, may not suffice. At least one federal court determined, “an inability to tolerate stressful situations is not an impairment for purposes of the ADA.”  Human resource professionals also often wonder whether an employee who has filed a workers’ compensation claim automatically becomes a “disabled” employee entitled to protection under the ADA because he has a “record of being disabled.” According to the September 3, 1996 EEOC Enforcement Guidance , not all employees with workers’ compensation injuries have a “record of an impairment,” as that term is used in 42 U.S.C. §12102(2)(B). Rather, the workers’ compensation injury at issue must be a mental or physical impairment that substantially limits a major life activity.  An employee who has suffered a workers’ compensation injury is not necessarily disabled under the ADA’s “regarded as” having a disability.  According to the EEOC:
A person with an occupational injury has a disability under the ‘regarded as’ portion of the ADA definition if s/he: (1) has an impairment that does not substantially limit a major life activity but is treated by the employer as if it were substantially limiting, (2) has an impairment that substantially limits a major life activity because of the attitude of others towards the impairment, or (3) has no impairment but is treated as having a substantially limiting impairment. 
Major life activity – Taking care of oneself, performing manual tasks, walking, seeing, hearing, breathing, working, speaking, sleeping, learning, sitting, lifting and reaching are considered major life activities. 
Substantially limits – Something that affects the disabled person in a significant way when compared to the average person with comparable training. A substantial limit is one that renders the person unable to perform a basic function that the average person in the general population can perform.  If the limitation is on one’s ability to work, the limitation must prevent a person from doing a broad range of jobs. 
Mitigating Measure – Medication or corrective device that helps or lessens the limitation of the impairment. Is a disability measured before or after “mitigating measures” that treat the impairment? In other words, when determining whether a person is disabled (or, has an impairment that substantially limits a major life activity), should one take into account the affect of any “mitigating measures,” such as medication or corrective devices? Although the Equal Employment Opportunity Commission (“EEOC”) has opined that both the existence of an impairment and whether an individual is substantially limited in a major life activity are “to be determined without regard to mitigating measures such as medicines, or assistive or prosthetic devices,”  The courts disagree. 
A Minnesota federal district court held that the EEOC interpretive guidelines are without merit, and disregarded them, finding instead that corrective and mitigating factors should be considered when determining whether an employee is disabled.  The United States Supreme Court definitively resolved this issue in its 1998-1999 session. At that time, the Court held that an employer (and a court considering a disability discrimination claim under the ADA) must evaluate the situation considering all available corrective and mitigating measures.  Specifically, the Supreme Court stated that evaluating conditions in their uncorrected state is “an impermissible interpretation of the ADA” and would result in an incorrect expansion of the ADA. 
Adverse employment action. 
Traditionally, “adverse employment action” for purposes of a discrimination case, consists of a poor performance review, discipline, termination of employment, demotion or similar action by an employer. Over the course of the last decade, the federal courts have consistently become more and more conservative in interpreting the term “adverse employment action” in the context of a claimed demotion.  For example, an employee who was reassigned to more stressful job with additional duties did not experience “adverse employment action.”  Changes in the employee’s position must cause a materially significant disadvantage to the employee, such as a change in title, salary or benefits. 
Qualified employee.Employers within the Eighth Circuit can make a persuasive argument that to establish the employee is “qualified” for purposes of the ADA, or any other anti-discrimination statute, the employee must establish she/he is meeting the legitimate expectations of the employer.  A risk-avoidant employer, however, will be mindful that many courts have held that the burden to show she/he was qualified for his/her job “is not great.”  For example, performance of a job for an extended period of time, or a promotion during the employment relationship, can be evidence that the employee was qualified.  Similarly, an employee was qualified where she/he was “praised” for “doing a good job” and “met all the sales quotas.” 
In addition to bearing the burden to prove she/he is qualified to perform the position, the employee must also show she/he is not disqualified by the disability from which she/he suffers. That is, the ADA provides protection only to disabled employees who, with or without reasonable accommodation, can perform the essential functions of the job. 
Reasonable accommodation – The ADA lists examples of reasonable accommodations, such as: (1) making the work place readily accessible to and useable by individuals with disabilities; (2) restructuring a job; (3) offering part time or modified work schedules; (4) reassignment of an employee to an open position; (5) buying equipment or modifying existing equipment; (6) adjusting examinations, materials, or policies in the work place; and (7) providing readers or interpreters.  The duty to request reasonable accommodation rests with the employee.  Employers are only obligated to accommodate disabilities about which the employer is aware; and, it is the responsibility of the disabled employee to make the employer aware that an accommodation is needed.  The individual manager is not liable for the actions taken by her/him in violation of the ADA. 
Undue hardship – An “action requiring significant difficulty or expense [to the employer],” “when considered in light of [these factors]: ” (1) the nature and cost of the accommodation, (2) the financial resources and size of the employer; (3) the type of business the employer is engaged in; and (4) the impact of the accommodation on business operations. 
Inferences of Discrimination.
Among many other factors, courts look to timing, and a comparative analysis of the employer’s treatment of non-disabled employees.
II. Disability Discrimination under the Minnesota Human Rights Act.
Coverage and Definitions.
Employers with one or more employees are bound by the anti-discrimination provisions of the MHRA, and employers with 15 or more employees are bound by the duty to reasonably accommodate employees under the MHRA.  The MHRA protects a “qualified disabled person” from discrimination and entitles such an employee to reasonable accommodation. 
- A physical, sensory or mental impairment
- that materially limits
- one or more major life activity 
- a record of such impairment; 
- is regarded as having such an impairment. 
Major life activity – Caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working (but not working at a specific job). 
Materially limits – A material limitation is something that impacts general health and capacity to function.  The phrase “materially limits” is less stringent than “substantially limits…” but it involves a consideration of the same issues.  “An impairment need only materially limit one or more life activities.” 
Adverse employment action – Traditionally, adverse employment action consists of a poor performance review, discipline, termination of employment, demotion or similar action by an employer. The Minnesota case law does not define “adverse employment action” nearly as restrictively as the federal case law in the Eighth Circuit. However, the federal case law cited above could be applied to the MHRA. One can look to the federal discrimination laws to interpret the same or similar terms under the state discrimination laws. 
Qualified employee – Under the MHRA, a “qualified disabled person” is one who, with reasonable accommodation, can perform the essential functions of the job. 
Reasonable accommodation – The MHRA lists examples of reasonable accommodations as follows (the statute notes the list is not exhaustive, and does not mean that such accommodations are required in all instances): (1) making the work place readily accessible to and/or useable by individuals with disabilities; (2) restructuring a job; (3) offering part-time or modified work schedules; (4) reassignment of an employee to an open position; (5) buying equipment or modifying existing equipment; (6) adjusting materials or policies in the work place; and (7) providing aides in the work place on a temporary basis. 
Undue hardship – Under the MHRA, relevant factors to consider in assessing whether an accommodation creates an undue hardship include: (1) the overall size of the business; (2) the nature and cost of the accommodation, (3) the reasonable ability of the employer to finance the accommodation at each of its locations; (4) the type of business in which the employer is engaged; and (5) documented good faith efforts to attempt or consider less restrictive or expensive alternatives. 
How Does the Duty to Reasonably Accommodate Arise?
Because the MHRA and the ADA define a “qualified disabled” person in a different manner, as well as the differing provisions regarding burden of proof with respect to disability discrimination cases, there is a strong argument that it is the employer who must inquire about reasonable accommodations necessary for disabled employees. While the ADA defines a qualified disabled person as someone who, with or without reasonable accommodation, can perform the essential functions of the job, the MHRA defines a qualified disabled person as someone who, with reasonable accommodation , can perform the essential functions of the job. As a result, the Minnesota employer must consider reasonable accommodations before making the assessment of whether the employee can perform the essential functions of the job.
Unlike the ADA, the MHRA provides:
If a respondent contends that the person is not a qualified disabled person, the burden is on the respondent to prove that it was reasonable to conclude the disabled person, with reasonable accommodation, could not have met the requirements of the job or that the selected person was demonstrably better able to perform the job. 
The individual manager is liable for his/her actions in violation of the MHRA under the aiding and abetting portion of the statute. 
III. The Family and Medical Leave Act. 
Coverage and Definitions
The FMLA applies to private sector employers of fifty (50) or more employees.  Covered employees are employees who have worked more than 1250 hours in the 12 months preceding the leave, and who work at a facility with 50 or more employees within a 75 mile radius. 
Like the ADA, the FMLA offers qualified employees two separate entitlements: (a) the employer must grant the employee the leave and return the employee to the same or similar position upon return from the leave; and (b) not discriminate because of the employee’s exercise of his/her rights under the FMLA.  Unlike the ADA, the first entitlement is a mandatory present entitlement, rather than just a prohibition against discrimination. In this respect the FMLA is much more like the Fair Labor Standards Act (“FLSA”). 
The FMLA entitles qualified employees to a total of twelve (12) weeks of unpaid leave per 12?month period for:
- the birth of a child of the employee, and the placement of a child with the employee for adoption or foster care;
- the care of the spouse, child or parent of the employee if such spouse, child or parent has a serious health condition;
- a serious health condition that makes the employee unable to perform the functions of his/her position. 
Serious health condition – Any illness, injury, impairment, or physical or mental condition involving either inpatient care in a medical care facility or continuing treatment by a health care provider.  A qualifying condition is one that requires absence from work for more than three calendar days and involves being under the supervision of a health care provider.  However, a chronic condition that causes episodic rather than a continuing period of incapacity may require an employer to grant intermittent FMLA leave.
Although other courts use a burden-shifting analysis similar to McDonnell Douglas, the 8 th Circuit recently applied an objective test to determine whether something is a “serious health condition.”  The employee was required to prove that: (1) she had an incapacity that required an absence from work; (2) the absence was greater than three days; and (3) during the absence she received continuing treatment by a healthcare provider. 
Same or similar position  – The employee has a right to be restored upon return to the position of employment held by the employee before the leave and/or an equivalent position with equivalent employment benefits, pay and other terms and conditions of employment. 
Equivalent position – One that is virtually identical to the employee’s former position in pay, benefits and working conditions, including privileges and status. The position must involve the same or substantially similar duties and responsibilities, that require equivalent skill, effort, and authority.  An employer cannot force an employee to accept a different position.  Also, employees must have the same opportunity for bonuses. 
Light duty positions – Usually do not constitute “same or similar” positions.  Therefore, an employer must be careful in managing individuals on workers’ compensation and FMLA. The employer can offer a light duty job, but cannot require acceptance of the position, although refusal to accept an offer of employment may jeopardize an employee’s workers’ compensation benefits. If offered and accepted, the time an employee is working on “light duty” is not counted against the 12 weeks of FMLA leave and the employee is entitled to return to same or similar position when restrictions are removed.
The employer is not required to restore an employee to the same or similar position where to do so would give the employee a “right, benefit, or position” to which the “employee would [not] have been entitled had the employee not taken the leave.”  In other words, the employee does not get something more than she/he would otherwise be entitled to receive simply because she/he goes on leave. With respect to this issue, however, it is the employer’s burden to how that the reassignment to a different position (or job elimination) would have taken place even if the employee had not exercised her/his rights under the FMLA. 
Who has the Duty to Ascertain Whether an Employee Is Entitled to FMLA Leave?
The employer is responsible for determining whether the employee is entitled to FMLA leave and for notifying the employee of the fact that the time off is being counted as FMLA leave.  Once the employee gives information about the need for leave, the employer must ascertain whether the leave is FMLA-qualifying.  The employee need only give enough information to make an employer aware of the fact that there may be an FMLA leave entitlement. 
Does the Employee Have to Give Notice of Leave Under the FMLA?
According to the regulations, if leave is foreseeable, the employee must provide the employer with 30 days’ notice of leave; if the leave is not foreseeable, the employee must provide notice as soon as is practicable. 
In addition, according to the regulations, the twelve week leave does not begin to “run” until the employer provides notice to the employee of the right to leave under the FMLA.  The Supreme Court decided in 2002 that this requirement of notice is invalid, however. The Court decided that a lack of notice, as required under the regulations, will not automatically lengthen an employee’s leave to an amount greater than 12 weeks. The Court also decided that the question of whether notice is ever required depends on how the employee relied upon, if at all, the employer’s notice or lack of notice. 
The individual manager may be liable for his/her actions in violation of the FMLA. Several federal jurisdictions have held that the FMLA provides for individual liability against employee-supervisors.  The rules interpreting the FMLA are consistent with these cases. 
IV. Minnesota’s Workers’ Compensation Laws.
Coverage and Definitions
The statute applies to any person who employs another person to perform a service for hire.  The statute entitles employees injured in the course and scope of employment to recover certain damages for those injuries.  Employees are entitled to payment of medical expenses, rehabilitation services and lost wages reasonably and necessarily incurred as a result of the work-related injury.  The wage loss benefits have technical names, applying to different factual circumstances, as follows: temporary total disability benefits (employee completely unable to work for a temporary period); temporary partial disability benefits (employee unable to work up to her/his prior income level because of the work-related injury); and permanent total disability (employee can never engage in substantial gainful employment again because of the work-related injury). 
There is a limitation on benefits available under Minnesota’s workers’ compensation laws. If the employer offers a job within the employee’s medical restrictions and the employee unreasonably rejects that job offer, then the employee is cut off from benefits. 
What is a work place injury for which the employee is entitled to recover? The employer is liable to pay compensation for “personal injuries or death of an employee arising out of and in the course of employment . . . ”  “‘Personal injury’ means injury arising out of and in the course of employment and includes personal injury caused by occupational disease; but does not cover an employee except while engaged in, on, or about the premises where the employee’s services require the employee’s presence as a part of such service at the time of the injury and during the hours of such service.” 
There are some exceptions with respect to recovery for work place injuries; for example, the statute does not apply to injuries “caused by the act of a third person or fellow employee intended to injure the employee because of personal reasons and not directed against the employee as an employee, or because of the employment.”  The statute also does not apply to injuries caused by the employee’s intoxication or intentionally self-inflicted injuries. 
Is There a Duty to “Reasonably Accommodate”?
While Minnesota workers’ compensation statute does not expressly require an employer to return an employee to work or to offer a light duty position, “rehabilitation” of employees has been one of the express purposes of Minnesota’s workers’ compensation laws since 1979, when the statue was enacted requiring rehabilitation. That statutory provision has since been amended to remove the mandatory “rehabilitation” component. Rehabilitation, as defined in the statute, remains an integral part of Minnesota’s workers’ compensation system, to be assessed on a case-by-case basis.  Any employee who is interested in rehabilitation assistance is entitled to an evaluation to assess its usefulness in that employee’s circumstance. 
Minnesota’s statute strongly encourages the employer to return the employee to work in a variety of ways, however. For example, Minnesota’s workers’ compensation law is intended, in part, to reduce the economic burden on employers caused by work place injuries.  The return of employees to their prior position or a light duty position is totally consistent with that policy because, in many instances, it reduces the employers’ exposure for workers’ compensation benefits. Not only could the employer be responsible for the wage loss benefits while the employee is out, but it may also be responsible for the costs of implementing the rehabilitation plan. 
With respect to the purpose of “rehabilitation,” the statute provides:
Rehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee’s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability. 
There is incentive for an employer to return employees to work following a workers compensation injury. For example, if the employee refuses either a suitable job or an appropriate light duty position, all entitlement to ongoing wage loss compensation ends at that point. 
In 1995, the legislature amended the workers’ compensation laws to allow for a penalty for employers who do not offer employees the right to return to work. The new statute provides:
An employer who, without reasonable cause, refuses to offer continued employment to its employee when employment is available within the employee’s physical limitations shall be liable in a civil action for one year’s wages . . . up to a maximum of $15,000 . . . . These payments shall not be covered by a contract of insurance. 
Does the Employee Have to Notify the Employer of the Workers’ Compensation Injury?
Unless the employer has actual knowledge of the injury, the employee must advise the employer of the injury within 180 days from the date of the injury or when the employee should have known she/he would be unable to work.  Failure to give such notice is a bar to recovery unless the employee is prevented from doing so because of the mental or physical infirmity. 
Generally, there is no individual liability for the benefits outlined above, unless the “employer,” as defined above, is an individual. There may be one exception; the anti-retaliation provisions of Minnesota’s workers’ compensation laws provide that “no person” shall “intentionally obstruct an employee seeking workers’ compensation benefits.”  That portion of the statute provides for: a right to a civil trial (outside the workers’ compensation system) on the issue of damages resulting from the obstruction; and recovery of attorneys’ fees. 
V. Reprisal (a/k/a Retaliation).
Definitions and Questions
Each of the statutory frameworks outlined above prohibits retaliation for the exercise of the rights provided for therein.  This prohibition is common for most discrimination statutes and the legal term that generally is used to refer to such retaliation is “reprisal.” 
Absent direct evidence of an intention to retaliate, to prove a prima facie case of “reprisal,” the employee must show: (a) statutorily protected conduct; (b) an adverse employment action by the employer ; and (c) a causal connection between the two. 
Adverse Employment Action for purposes of reprisal is a lesser standard than “adverse employment action” for purposes of a discrimination claim. In Burlington N. & Santa Fe Ry. v. White, 126 S. Ct. 797 (2006), the United States Supreme Court ruled that if an employee is: (a) assigned to perform more physically demanding work by being shifted from forklift duty to standard track laborer tasks and (b) suspended for 37 days (even though the suspension was later reversed and back pay was paid for the period of the suspension) those actions are enough to be adverse employment action in the context of a retaliation case. This holding makes the federal law align more with the language of the Minnesota Human Rights Act on this point.
The Burlington decision is important because of two clarifications by the Supreme Court. First, the Court recognized that, unlike the anti-discrimination provision, the anti-retaliation provision of Title VII does not confine the actions and harms, it forbids to those that are related to employment or occur at the workplace. Therefore, under this standard, an employer could be found to have retaliated against an employee by taking actions not directly related to her employment or by causing her harm outside the workplace.
Second, however, the Court noted that Title VII’s anti-retaliation provision applies only to those employer actions that would have been “materially adverse to a reasonable employee or job applicant,” or “harmful to the point that [the employer’s actions] could well dissuade a reasonable worker from making or supporting a charge of discrimination.” The Court ruled that what is “materially adverse” and what would “dissuade a reasonable worker” are context-specific and must be analyzed under the facts of a particular situation.
How does an employee prove a “causal connection?” The causal connection can be demonstrated by evidence of circumstances that justify an inference of retaliatory motive, such as showing that the employer had actual knowledge of the protected activity and that the adverse employment action follows closely in time. 
Does the employee need to show that retaliation is the only motive? No. Retaliation must be a substantial causative factor motivating the employer to take adverse action, including filing suit against the employee.  However, it is not necessary for the plaintiff to establish that retaliation was the sole – or even the primary – reason for the adverse employment action. Rather, the plaintiff prevails upon a showing that retaliation “more likely than not” motivated the adverse action. 
Does the employee’s underlying claim (i.e., violation of the MHRA, FMLA, ADA or entitlement to workers’ compensation benefits) have to be valid in order for the employee to be successful in a claim of reprisal? No. The fact that the employer’s position prevails in the underlying claim does not preclude a finding that there was adverse action motivated by retaliation. 
Can an employer be charged with reprisal for actions taken against a former employee? Yes. The United States Supreme Court and several Minnesota courts have held that, unlike some of the other discrimination laws, the duty to refrain from retaliation does not end when the employment relationship ends. In Robinson v. Shell Oil Co., 117 S.Ct 843 (1997), the Court held that providing a negative reference for a former employee who had filed an EEOC charge of discrimination constituted unlawful retaliation in violation of Title VII. 
Coverage and Individual Liability
The issues of coverage and whether a manager can be held individually liable will be governed by the statute under which the employee alleges she/he asserted her or his rights.
b. The Plan For Avoiding Litigation.
c. Practical Tips
1. Do not ask whether the employee is disabled. Ignorance of a disability is bliss. Duty to reasonably accommodate only relates to known disabilities.  In addition, there can be no intentional discrimination when there is no evidence the employer knew the employee was disabled. Once an employer does know of the disability, the employer has a duty to reasonably accommodate.
2. Keep a list of the statutes that apply to your company.
3. Make a checklist for each and/or all applicable statute[s]. The list below might be helpful:
a. Do we (the managers and the employer) have any knowledge that the employee is “disabled”?
b. What rights, if any, available to disabled/injured employees have been asserted by the subject employee?
c. If we have knowledge that the employee is or may be disabled, have we considered the obligations to reasonably accommodate, if any?
d. Is the employee on workers’ compensation leave, or has she/he recently filed for workers’ compensation benefits?
e. Does the employee suffer from a serious health condition? If so, have we afforded her/him all the rights to which she/he is entitled under the FMLA?
f. Even if the employee is not disabled, has anyone made any comments that would suggest that we believe she/he is disabled? If so, who made the comments, and was prompt remedial action taken in response to any negative comments?
g. If the employee is disabled or we have knowledge that she/he may be, have we made the employee aware of her/his rights under the FMLA, and, if the employee is out on a leave that qualifies as an FMLA leave, have we given her/him notice of the fact that we are considering her/his leave as an FMLA leave?
h. What documentation do we have that there is a legitimate, nondiscriminatory motive for the termination? If we have knowledge that the employee is disabled, is the legitimate nondiscriminatory reason something unrelated to the disability and/or serious health condition?
i. If we are taking the position the employee is not “qualified,” what documentation do we have that she/he is not qualified? And, does her/his lack of ability to do the job have anything to do with our inability/refusal to reasonably accommodate a disability from which she/he suffers?
j. If we are taking the position we could not reasonably accommodate the employee because of an undue hardship, what documentation do we have that we attempted and/or considered reasonable accommodations and the costs of such accommodation(s)?
k. Have I advised the individual manager that she/he may be individually liable for any failure to comply with the law (if applicable)?
l. Have we closely considered the timing? If the employee asserted any protection under these various statutes, when did she/he do so in relation to the first act (or last act) taken by the employer along the chain of events leading to termination? Have I also considered whether all the time off entitlements have been exhausted? For example, employers cannot require an employee on FMLA and workers’ compensation simultaneously to use his vacation pay or other paid time off. Minn. Stat. §176.221, subd. 9 provides that an employee cannot be required to take paid time off. As a result, even if an employee’s 12 weeks of FMLA is exhausted, and the employee is still on workers’ compensation leave, there will be a question of whether there is additional leave entitlement.
m. Because of the timing, can the employee claim there is a connection? (i.e., when did the employee give notice of injury under Minn. Stat. § 176 or request leave and begin to exercise or inquire about rights under the FMLA?) If so, what documentation do we have to demonstrate there was a concern about the employee’s performance before the employee complained and/or asserted his rights.
n. If we are taking the position that attendance at work is a problem, what do our policies say about attendance and have they been uniformly enforced?
o. If we are taking the position that attendance at work is a problem, have we taken into account any FMLA-protected time to calculate the failure to adequately attend? FMLA time may not count towards any attendance warnings. 
p. If we are taking the position that the attendance at work is a problem requiring termination, does our job description say that attendance at work regularly is an essential function of the job?
q. Is the personnel file “ready,” for production? Does is contain any materials which violate any of the above statutes and is it consistent with Minn. Stat. §181.961, subd. 2?
r. Have I called my lawyer yet? 
- An employee has horrendous mood swings because of depression and she/he is taking medication as a result of the bipolar condition. The employer does not know that the employee has any issues other than being in a bad mood on certain occasions.
- Does the employer have to reasonably accommodate?
- What if the employee tells the employer that she/he is stressed and depressed?
- What if the employee becomes violent? 
- An employee has a terrible record of attendance that the employee alleges is related to a medical problem. The twelve weeks of leave under the FMLA has been exhausted.
- Does the employer have to reasonably accommodate?
- What if there is a physical injury involved and the employee requests light duty?
- Does the employer have to offer light duty?
- What if the employee refuses to accept? 
VII. Possible Sources Of Assistance After The Termination And The Commencement Of The Lawsuit.
Once the employee leaves the employment relationship, the employer may have the upper hand in defending against claims of disability discrimination. Believe it or not, there are some laws that may assist an employer in asserting its position. Frankly, once the employee leaves employment, she/he most often needs money. If she/he applies for and gets certain benefits to fill the void in income, this could be beneficial to the employer’s case. If the employee gets another job, she/he has limited the damages recoverable. Moreover, if the employee explores other avenues for economic relief, the employee may inadvertently limit benefits available to her/him under her/his disability discrimination claim. For example,
- Under Minnesota Unemployment Compensation laws, the employee must represent that she/he is ready, willing and able to work. Such a statement on an application for benefits could be used to demonstrate that the employee is not disabled.  See the Unemployment Benefits Handbook from the Minnesota Department of Economic Security, distributed to anyone applying for benefits. See also, generally, Minn. Stat. §§ 268.09 – 268.23. Moreover, when applying for Minnesota unemployment compensation benefits, an employee is asked whether or not he is disabled. Although the employee can refuse to answer this question, if the employee says he is not disabled on this application (as he may be incented to do to try to get benefits and/or job placement assistance), he may be setting himself up for taking an inconsistent position. If this employee files a lawsuit alleging disability discrimination, he will have to show that he is disabled; this application for unemployment compensation benefits could be inconsistent, therefore, with his position in a lawsuit.
- What if the employee files for disability benefits? Depending on what your disability policy says, this act could provide a defense to a disability discrimination lawsuit. In the past several years, many courts have held that employees who have sought and received benefits claiming to be totally and permanently disabled, while at the same time claiming to be able to perform the essential functions of the job, are not entitled to make a disability discrimination claim. 
If an employee applies for social security disability benefits, she/he may be disqualifying herself/himself from social security benefits, depending on the representations made in the filings.  In May of 1999, the United State Supreme Court stated that an employee who applies for and receives social security disability benefits is not automatically precluded from making a claim for disability discrimination.  The Court, rather, stated that whether one is a qualified disabled person, despite the receipt of social security benefits, must be assessed on a case-by-case basis. In addition, the Court noted the difference between the Social Security Act (which does not at all consider whether or not an employee can perform with reasonable accommodation) and the ADA (which places an affirmative duty on an employer to consider reasonable accommodation).
- If you are a unionized employer, your collective bargaining agreement may provide some basis to claim that it is improper to reasonably accommodate in a way that would interfere with another employee’s rights under a collective bargaining agreement.  On this issue, the United States Supreme Court declined to review a decision in favor of an employer.
Similarly, in U.S. Airways, Inc. v. Barnett, the United States Supreme Court ruled that while it is generally unreasonable for an employer to violate a seniority system to provide reassignment to an employee as an accommodation, there may be “special circumstances” that make such an accommodation reasonable.  In U.S. Airways, the court ruled that the reassignment of an employee to a position in contravention of an existing seniority system was reasonable under those “special circumstances.” 
The question of whether to terminate an employee who may be “disabled” is one to be undertaken with great care. It is a difficult decision full of possible problems. The good news may be that the employee’s future course of conduct is also riddled with possible pitfalls. And, perhaps most important, the courts are generally narrowly interpreting the rights relating to the possibly “disabled” employee who is terminated for poor performance. 
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* MSBA Certified Labor and Employment Law Specialist
 42 U.S.C. §12111(5); 29 C.F.R. 1630.2(e).
 42 U.S.C. §12112(a); 42 U.S.C. §12112(b)(5)(A).
 McDonnell Douglas v. Green, 411 U.S. 792 (1973); Price v. S-B Power Tool, 75 F.3d 362, 365 (8th Cir.), cert. denied, 117 S.Ct. 274 (1996); Aucutt v. Six Flags Over MidAmerica, 85 F.3d 1311, 1318 (8th Cir. 1996).
 Due to the amount of litigation analyzing the determination of whether an individual plaintiff is considered disabled under the ADA and/or state law, there is a bill pending to revise the ADA, in our view more favorably for employees. Specifically, legislation (H.R. 3195, 2008 Leg., 110th Cong. 2nd Sess. (MN. 2008)), recently approved on June 25, 2008 by a House vote of 402-17, would redefine the term “disability” to “be construed broadly,” which some believe will enable more plaintiffs to survive summary judgment than we see today. Accordingly, in the future, when/if this bill becomes law (and most industry insiders are guessing it will pass), it may be a better approach for employers to assume the individual-employee in question has a disability and engage in an interactive process to determine whether there is any available reasonable accommodation, rather than attempting to argue that the individual-employee does not have a disability.
 42 U.S.C. §12102(2)(A).
 42 U.S.C. §12102(2)(B).
 42 U.S.C. § 12102(2)(C).
 Mundo v. Sanus, 966 F.Supp. 171 (D.C. E.N.Y. 1997).
 U.S. Equal Employment Opportunity Comm’n., EEOC Enforcement Guidance: Workers’ Compensation and the Americans with Disabilities Act (Sep. 3, 1996).
 42 U.S.C. §12102(2)(C).
 U.S. Equal Employment Opportunity Comm’n., EEOC Enforcement Guidance: Workers’ Compensation and the Americans with Disabilities Act (Sep. 3, 1996); See also, U.S. Equal Employment Opportunity Comm’n., Definition of the Term “Disability” at 902.8(a), 8 FEP Manual (BNA) 405:7272?405:7286 (1995).
 29 C.F.R. §1630.2(i); see also, Helfter v. United Parcel Service, 115 F.3d 613, 616 (8th Cir. 1997).
 29 C. F. R. §1630.2(j)(2) (Factors to consider for determining a substantial limitation are: (1) the nature and severity of the impairment; (2) its duration or anticipated duration, and (3) its long-term impact).
 29 C.F.R. § 630(j)(2)(i); Aucutt v. Six Flags Over Midtown. Inc., 85 F.3d 1311, 1319 (8th Cir. 1996).
 29 C.F.R. §§ 1630.2(h) and 1630.2(j)(2).
 Sutton v. United Airlines, Inc., 527 U.S. 471, (1999); see also, Murphy v. United Parcel Service. Inc., 527 U.S. 516, (1999).
 Wilking v. County of Ramsey, 983 F. Supp. 848 (D. Minn. 1997).
 Sutton., 527 U.S. 471; Murphy, 527 U.S. 516.
 Interestingly, in the summer of 2006, the United State Supreme Court significantly lowered the bar on what is enough to be “adverse employment action” in the context of a retaliation case. Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006). This case is discussed in more detail in the Reprisal section of this article.
 Not surprisingly, this conservatism has coincided with the substantial increase of claims following enactment of the ADA.
 Harlston v. McDonnell Douglas Co., 37 F.3d 379 (8th Cir. 1994).
 Witley v. Peer Review Systems, Inc., 221 F.3d 1553, 1055 (8th Cir. 2005); See also Miller v. Citizens Sec. Group. Inc., 116 F.3d 343, 346 (8th Cir. 1997).
 Cumpiano v. Banco Santander Puerto Rico, 902 F.2d 148, 154 (1st Cir. 1990).
 Jalil v. Avdel Corp., 873 F.2d 701, 707 (3rd Cir. 1989).
 Raschick v. Prudent Supply, Inc., 830 F. 2d 1497, 1499 (8th Cir. 1987).
 29 C.F.R. §1630.2(m).
 42 U.S.C. § 12111(9); 29 C.F.R. § 1630.2(o)(2).
 Rask v. Fresenius Md. Care N. Am., 509 F.3d 466 (8 th Cir. 2007).
 H.R. Rep. No. 485 Part 2, 101st Cong., 2d Sess. at 65 (1990); S. Rep. No. 116, 101st Cong., 1st Sess. at 35 (1989).
 Karilyn Bonomolo-Hagen v. Clay Central-Everly Community School District, 121 F.3d 446 (8th Cir. 1997).
 42 U.S.C. §12111(10); 29 C.F.R. §1630.2(p).
 Minn. Stat. § 363A.03, subd. 16; Minn. Stat. § 363A.08., subd. 6.
 Minn. Stat. §363A.02, subd. 12.
 State by Cooper v. Hennepin, 441 N.W.2d 106, 111 (Minn. 1989) (superseded by statute, as stated in Sigurdson v. Bolander, 532 N.W.2d 225 (Minn. 1995)).
 Sigurdson v. Bolander & Sons Co., 511 N.W.2d 482, 488-489 (Minn. Ct. App. 1994).
 Sigurdson v. Bolander & Sons Co., 532 N.W.2d 225, 228 (Minn. 1995).
 Minn. Stat. § 363A.02, subd. 12.
 Anderson v. Hunter, Keith, Marshall & Co., Inc., 417 N.W.2d 619, 623 (Minn. 1988).
 Minn. Stat. §363A.03, subd. 36.
 Minn. Stat. §363A.08, subd. (6)(a).
 Minn. Stat. §363A.08, subd. 6(b).
 Minn. Stat. §363A.03, subd. 36; see also, Minn. Stat. §363A.25 and Minn. Stat. §363.03, subd. 12. But see, Heintzelman v. Runyon, 120 F.3d 143, 145, n.8 (8th Cir. 1997).
 Ulrich v. City of Crosby, 848 F. Supp. 861 (D. Minn. 1994); Minn. Stat. §363A.14.
 The FMLA was amended in January of 2008 to allow for 12 weeks of “exigency” leave for employees whose family members are called to active service and 26 weeks of “care of service member” leave to care for a family member who is recuperating, undergoing treatment or otherwise on the temporary disability retired list, as a result of a serious health condition. As this article focuses on disabled employees, we are not focusing on either “exigency” or “care of service member” leave. (See attached Employment Law Alert regarding these relatively new FMLA leaves.)
 See Kaylor v. Fannin Reg. Hosp. Inc., 946 F. Supp. 988, 995 (N.D. Ga. 1996); see also, 29. U.S.C. § 2611(4)(A). Although this report is intended to address private sector employers, there are repercussions under the FMLA for public agencies, the General Accounting Office, and the Library of Congress. Id.
 29 U.S.C. § 2611(2)(A).
 Kaylor, 946 F.Supp. at 995; McClain v. Southwest Steel Co., Inc., 940 F. Supp . 295, 299 (N.D. Okla. 1996); see also, George v. Ass. Stationers, 932F. Supp.1012, 1017 (N.D. Ohio 1996). The anti-discrimination provisions of the FMLA are evaluated under the four part prima facie case/ McDonnell Douglas burden-shifting analysis outlined above. See, Morgan v. Hilti, 108 F.3d 1319, 1322 (10th Cir. 1997). Petsche v. Home Fed. Say. Bank. N. Ohio, 952 F. Supp. 536, 538 (N.D. Ohio 1997) (citing, Burress v. Sears. Roebuck & Co., 1996 WL 634209 (S.D. Ohio 1996)); Kaylor, 946 F. Supp. at 1001.
 See 29 C.F.R. §825, et seq. (FMLA patterned after the FLSA); Knussman v. State of Maryland, 935 F. Supp. 659, 664 (D. Md. 1996); 29 U.S.C. §2614(a)(1).
 29 U.S.C. § 2612(a)(1)
 29 U.S. C. § 2611(11); Murohy v. Cadillac Rubber & Plastics, Inc., 946 F. Supp. 1108, 1121 (W.D.N.Y. 1996).
 See Rhoads v. Fed. Deposit Ins. Corp., 956 F. Supp. 1239, 1254 (D. Md. 1997); 29 C.F.R. § 825.114(a)(2)(i).
 Rankin v. Seagate Technologies, Inc., 246 F.3d 1145, 1148 (8 th Cir. 2001).
 Whether an employee was returned to the same position is a question of law to be determined by a judge, not a fact question for a jury. Patterson v. Alltel Info. Serv. Inc., 919 F. Supp. 500, 504 (D. Me. 1996). This means that if an employer is sued, before trial even begins the employer’s liability under this provision may be determined by a judge. However, Judge Kyle has ruled to the contrary in Somers v. Sprint. (Civil File No. 3-96-774) (October 7, 1997). (Judge Kyle determined the question of what is a same or similar position should be decided by a jury).
 29 U.S.C. § 2614(a)(1); Murphy, 946 F.Supp. at 1121; Fejes v. Gilpin Ventures. Inc., 960 F. Supp. 1487 (D. Colo. 1997). This reinstatement right exists even where the employer replaced the employee or restructured the employee’s job while on leave. Specifically, “an employee is entitled to such reinstatement even if the employee has been replaced or his or her position has been restructured to accommodate the employee’s absence.”
 29 C.F.R. § 825.215(a).
 29 C.F.R. §825.215(e)(4).
 29 C.F.R. §825.215(e)(3).
 29 C.F.R. § 825.702(d).
 29 U.S.C. §2614(3)(B).
 See, 29 C.F.R. §825.216(a). ”This defense will only work if the employer can prove its decision to implement whatever change is at issue was finalized before the employee either went on FMLA leave or gave notice of the need for leave. “Only the timing of the final decision to replace [an employee] is relevant.” Patterson v. Alltel Info. Serv., Inc., 919 F. Supp. 500, 505, FN 9 (D. Me. 1996). Suggesting that an employer discussed adding resources, changing responsibilities, firing an employee or began interviewing for replacements before the employee went on leave or gave notification of leave is irrelevant to her rights under the FMLA. See Id. The only relevant question is when the final decision to take adverse employment action was made. See Id.
 29 C.F.R. §825.302(c).
 29 C.F.R. §825.303(a).
 29 C.F.R. § 825.302(a); 29 C.F.R. §825.208(a).
 See Ragsdale v. Wolverine, 535 U.S. 81 (2002).
 Holt v. Welch Allyn, Inc., 3 Wage & Hour Cas. 2d (BNA) (N.D. N.Y. 1997), 1997 WL 210420; Clay v. Cite of Chicago, 1997WL 106111 (N.D. Ill. 1997); Knussman v. State of Maryland, 935 F. Supp. 659 (D. Md. 1996); Waters v. Baldwin County, 936 F. Supp. 860 (S.D. Ala. 1996); Johnson v. A.P. Prods., Ltd., 934 F. Supp. 625, 628 (S.D. N.Y. 1996); Reich v. Midwest Plastics Eng. Inc., 130 Lab. Cas. (CCH) 33, 287, 1995 WL 478884 (W.D. Mich. 1995); McKiernan v. Smith, Edwards, Dunlap. Co., 130 Lab. Cas. (CCH) 33, 296, 1995 WL 311393 (E.D. Penn. 1995).
 29 C.F.R. § 825.104(d).
 Minn. Stat. §176.011, subd. 10.
 Minn. Stat. § 176.011, subd. 9 and 176.021, subd. 1.
 See Minn. Stat. §§176.021, 176.101, 176.135 and 176.102, subd. 4.
 See generally, Minn. Stat. §176.101, subds 1-4.
 Minn. Stat. §176.101(1)(i).
 Minn. Stat. §176.021, subd. 1.
 Minn. Stat. § 176.011 subd. 16.
 Minn. Stat. §176.021, subd. 1.
 See Minn. Stat. §176.102, subd. 1(b).
 Minn. Stat. §176.102, subds. 4 and 6.
 Minn. Stat. §176.001.
 Minn. Stat. §176.102, subd. 9.
 Minn. Stat. §176.102, subd. 1(b).
 Pursuant to Minn. Stat. § 176.101, subd. 1, temporary total disability benefits shall cease if the employee refuses an offer of work consistent with a rehabilitation plan filed with the commissioner of labor and industry. If no rehabilitation plan has been filed then TTD benefits cease if the employee refuses “an offer of gainful employment that the employee can do in his physical condition.” Once benefits have been stopped for refusal of gainful employment they may not be recommenced. However, the threshold for what is gainful employment is usually pretty low. For example in Detmar v. Kasco, 60 W.C.D.-81 (WCCA 2000) the court held that a job requiring the employee to relocate was not suitable even where the job was physically appropriate.
 Minn. Stat. §176.82, subd. 2.
 Minn. Stat. §176.141.
 Minn. Stat. §176.82, subd. 1.
 See 29 C.F.R. §1630.12; 29 U.S.C. §2615; Minn. Stat. §363A.15; and Minn. Stat. § 176.82.
 See, e.g., Minn. Stat. §363A.15.
 Once again, the Minnesota law on this subject is slightly different from the federal law. Arguably, under the Minnesota Human Rights Act, an employee need not show that she/he suffered an “adverse employment action”, as that phrase has been defined above, to maintain a claim. Rather, under the MHRA, an act of reprisal includes, but is not limited to, ” any form of intimidation, retaliation, or harassment.” Minn. Stat. § 363A.15.
 See, e.g., Dietrich v. Canadian Pacific Ltd., 536 N.W.2d 319 (Minn. 1995); Schweiss v. Chrysler Motors Corp., 987 F.2d 548, 549 (8th Cir. 1993); Rath v. Selection Research. Inc., 978 F.2d 1087, 1089-90 (8th Cir. 1992); Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980).
 Dietrich, 536 N.W.2d 319.
 McGrath v. TCF Bank Say., 502 N.W.2d 801 (Minn. Ct. App. 1993), modified 509 N.W.2d 365 (Minn. 1993).
 Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619 (Minn. 1988).
 State v. Wallin, 1997 WL 53016 (Minn. Ct. App. 1997); cf., Wentz v. Maryland Cas. Co., 869 F.2d 1153 (8th Cir. 1989).
 See also. State v. Wallin, 1997 WL 53016 (Minn. Ct. App. 1997) (filing a claim against a former employee is reprisal).
 Minn. Stat. §363A.08, subd. 6.
 29 C.F.R. §825.215(c)(2).
 It may go without saying, but a well versed employment lawyer is without question the best resource to use in “dotting your I’s and crossing your T’s” when you are attempting to terminate or discipline an employee who is or may be disabled.
 See Webb v. Mercy Hospital, 102 F.3d 958 (8th Cir. 1996) (no duty to accommodate aberrant behavior because not sufficient notice of a disability under the ADA) Palmer v. Circuit Court of Cook County, Ill., 117 F.3d 351 (7th Cir. 1997) (no duty to accommodate violence).
 See 29 C.F.R. §825.702(d)(2) (may not count light duty as part of FMLA leave); Kotlowski v. Eastman Kodak Co., 922 F. Supp. 790 (W.D.N.Y 1996) (ADA does not require an employer to accommodate an employee who does not attend work); Haysman v. Food Lion. Inc., 893 F. Supp. 1092 (S.D. Ga. 1995); Gore v. GTE South, Inc., 917 F. Supp. 1564 (M.D. Ala. 1996); Lindgren v. Harmon Glass Co., 489 N.W.2d 804 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992); Miller v. Honeywell, Inc., 1996 WL 481525 (Minn. App. 1996).
 See generally, Minn. Stat. § 268.01.
 See, e.g., August v. Offices Unlimited. Inc., 981 F.2d 576 (1st Cir. 1992); Kennedy v. Applause. Inc., 1994 WL 740765 (C.D. Cal. Dec. 6, 1994); Riegel v. Kaiser Foundation Health Plan of N. C., 859 F. Supp. 963, 967?70 (E. D. N. C. 1994); contra, Smith v. Dovenmuehle Mortgage, Inc., 859 F. Supp. 1138 (N.D. Ill. 1994); D’Aprile v. Fleet Services Corp., 92 F.3d 1 (1st Cir. 1996); Pressman v. Brigham Medical Group Inc., 919 F. Supp. 516 (D. Mass. 1996); Ward v. Westvaco Corp., 859 F. Supp. 608 (D. Mass 1994).
 McNemar v. Disney Stores. Inc., 91 F.3d 610 (3d Cir. 1996), cert. denied (employee represented she/he was totally and permanently disabled in Social Security documents), 117 S.Ct. 958; Bennett v. United Parcel Service. Inc., 5 AD Cases 260 (S.D. Tex. 1995); Garcia-Paz v. Swift Textiles, 873 F. Supp. 547, 554 (D. Kan. 1995). But see fn. 99.
 Cleveland v. Policy Management Systems. Inc., 526 U.S. 795, 119 Sup. Ct. 1597, (U.S. 1999).
 Eckles v. Consolidated Rail Corp., 7th Cir. 7 EDR 234, 256 (August 21, 1996), 94 F.3d 1041; Karlik v. Duibin, 130 F.3d 76 (3 rd. Cir. 1997)
 U.S. Airways, Inc., v. Barnett, 535 U.S. 391 (2002). Those special circumstances include where an employer may unilaterally alter a seniority system and, in the past, has done so with regularity; where the seniority system has exceptions; and where a seniority system contains “procedures for making exceptions, thus suggesting to employees that seniority does not automatically guarantee access to a specific job.”
 This, of course, may change if H.R. 3195 becomes law.