A nurse’s inability to perform essential job functions, either with or without reasonable accommodations, prevented her disability discrimination claim from advancing to a jury trial and warranted summary judgment by the U.S. District Court for the District of Minnesota in Attiogbe-Tay v. SE Rolling Hills LLC, No. 12-1109 (D. Minn. Nov. 7, 2013).
Comfort Attiogbe-Tay, a licensed practical nurse, was not entitled to reinstatement under the Family and Medical Leave Act, nor was her job protected by the Americans with Disabilities Act, the court found, because she could not return to doing the “physical tasks inherently connected with attending to patients” without restrictions following her 12-week medical leave of absence.
Facts of the Case
Attiogbe-Tay cared for about 160 patients as the only LPN working the overnight shift at The Colony, an assisted living facility, in Eden Prairie, Minn. At the end of her FMLA leave for elective knee replacement surgery, Attiogbe-Tay returned to work with a note from her physician saying that she could not kneel, squat or lift more than 50 pounds for six weeks.
The job description for the LPN position, which Attiogbe-Tay signed upon hire, notes that LPNs are occasionally required to kneel, squat and lift up to 100 pounds. The job description defines “occasionally” as having a frequency of between 1 percent and 33 percent of an eight-hour shift.
The Colony’s employee handbook states:
If an employee has taken leave for his or her own serious health condition, prior to returning from leave, the employee must provide The [Colony] with certification from his or her health care provider that the employee is able to resume work. If medical restrictions exist at the end of the leave, The [Colony] will review and discuss the situation with the employee, and determine whether the work restrictions can be reasonably accommodated.
Attiogbe-Tay asked The Colony to “reasonably accommodate” her by: (1) allowing her to call for assistance when a resident fell; (2) providing her with an aide; or (3) permitting an extended leave of six weeks until her restrictions expired.
The Colony instead dismissed Attiogbe-Tay and invited her to reapply once her temporary restrictions were lifted.
Attiogbe-Tay subsequently filed suit alleging disability discrimination and failure-to-accommodate claims under ADA and the Minnesota Human Rights Act, and FMLA interference and retaliation claims.
Court Weighs In
The federal district court found that “kneeling, squatting and lifting over 50 pounds were essential functions of the LPN position” and pointed out, “the consequences of failing to perform the duties are potentially dire.” (See 29 C.F.R. §1630.2(n)(3), listing the consequences of not performing a function as a relevant factor in determining whether function is essential.)
In examining what could be determined a reasonable accommodation, the court said Attiogbe-Tay’s request for assistance “would transfer the essential functions of [her] job to other employees, who would then be hampered in the performance of their own duties.”
As to the notion of providing Attiogbe-Tay an aide, the court asserted that an employer “is not obligated to hire additional employees … to assist [the employee] in her essential duties.”
While the court conceded that extended leave as an accommodation—“in some circumstances”—would be reasonable, in this instance, the court concluded that extended leave would constitute “an undue hardship” on the employer given Attiogbe-Tay’s role as the only overnight LPN on duty, and The Colony’s “relatively small staff size, its concerns over the quality of resident care and the negative effects on its budget and staff.”
Employer Takeaways
A function is essential when: (1) the position exists to perform that function; (2) the function may only be performed by a limited number of employees; or (3) it requires special expertise. See 29 C.F.R. §1630.2(n)(2).
In addition to the judgment of an employer, other evidence of essential functions includes written job descriptions, amount of time spent performing the function, the consequences of not performing the function and the current work experience of others in similar jobs.
Employers should regularly review and audit their job descriptions to ensure they accurately reflect the essential functions of the positions, says Jackson Lewis partner and employment law attorney Michael R. Bertoncini.