A senior living facility lawfully terminated an LPN when, following knee replacement surgery and the expiration of her FMLA leave, she could no longer  perform the essential functions of her job, a federal district court has found.  Comfort Attiogbe-Tay v. SE Rolling Hills LLC, a foreign corporation d/b/a The Colony at Eden Prairie, No. 12-1109 (DSD/LIB) (D. Minn. Nov. 7, 2013).

The plaintiff cared for approximately 160 assisted living patients as the only LPN working the overnight shift.  She took a 12-week FMLA leave for elective knee replacement surgery.  At the end of the FMLA leave, she informed her employer that while she could return to work, she could not kneel, squat or lift more than 50 pounds for six weeks.  The employer terminated the plaintiff, but invited her to reapply for employment once her temporary restrictions were lifted. 

The plaintiff filed suit alleging the employer discriminated against her on the basis of her disability and failed to accommodate her in violation of the Americans with Disabilities Act and Minnesota law.  She also alleged the employer violated the FMLA by interfering with her rights under that statute and retaliating against her for taking FMLA leave.  The trial court granted the employer’s motion for summary judgment as to all counts.

Relying heavily on the employer’s job description, which the plaintiff signed when she began her employment, the court found that kneeling, squatting and lifting over 50 pounds were essential functions of the job.  The plaintiff argued she could have performed these functions if the employer had reasonably accommodated her by: (1) allowing her to call for assistance when a resident fell, (2) providing her with an aide, or (3) allowing her a six-week leave of absence until her restrictions expired. 

The court found that calling for assistance or providing an aide were not reasonable accommodations because employers are not required to transfer essential functions to another employee or hire additional employees to assist a disabled employee. 

The employer argued that an additional six-week leave of absence would cause it to suffer an undue hardship.  The court agreed, crediting the employer’s concerns that covering the plaintiff’s absence with temporary LPNs and other employees working overtime would result in an uneven level of care for the residents and fatigue to the other LPNs, as well as causing the employer to incur considerable expense.

The court dismissed the FMLA interference claim because the employer had allowed the plaintiff to take the full 12-week FMLA leave and it was not required to reinstate her because she could not perform the essential functions of the job.  The court also dismissed the FMLA retaliation claim because the plaintiff could not show the employer’s stated reason for terminating her employment was pretext for unlawful retaliation.

Employers should regularly review and audit their job descriptions with employment counsel to ensure the descriptions accurately reflect the essential functions of the positions.