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.

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Photo of Michael R. Bertoncini Michael R. Bertoncini

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters…

Michael R. Bertoncini is a Principal in the Boston, Massachusetts, office of Jackson Lewis P.C. He practices labor and employment law, with a particular emphasis on labor relations, employment law counseling and litigation, and data privacy and security law.

In labor relations matters, he regularly counsels clients on the practice of positive employee relations, negotiates collective bargaining agreements on behalf of organized clients, represents clients in labor arbitrations and National Labor Relations Board proceedings, and counsels clients with respect to rights and obligations under collective bargaining agreements and applicable labor and employment laws. He also has extensive experience in advising organizations responding to corporate campaigns and negotiating neutrality agreements.

Mr. Bertoncini’s privacy and data security practice focuses on advising clients on complying with HIPAA and other state and federal privacy and data security laws. He regularly reviews and develops policies and procedures, written information security plans and integrated compliance programs to assist clients in meeting their obligations under privacy and data security laws. Mr. Bertoncini has represented clients in investigations of alleged data breaches and advises them on their reporting obligations in the event of a data breach. He also conducts workplace training programs on HIPAA compliance and related privacy and data security topics.

Before joining Jackson Lewis, Mr. Bertoncini was Deputy General Counsel for a hospital system that is the largest fully integrated community care organization in New England. He was responsible for all of the system’s labor and employment law matters, and was involved in its acquisition by a private equity firm as well as its growth from six to ten hospitals in a twelve-month period. His three years as in-house counsel for this large health care system give Mr. Bertoncini a keen understanding of the impact of labor and employment law issues on clients’ business operations.

In addition to his labor relations and privacy experience, Mr. Bertoncini has extensive experience in conducting internal investigations and counseling clients on whistleblower and retaliation matters, as well as negotiating executive agreements, both employment and separation agreements. Mr. Bertoncini also represents clients in the litigation of employment matters. His litigation experience includes matters before federal and state courts and administrative agencies. He has appeared before United States Courts of Appeals and District Courts, Massachusetts and New York state courts, the Equal Employment Opportunity Commission, and the Massachusetts Commission Against Discrimination.

Mr. Bertoncini is a frequent speaker and trainer on labor and employment law topics for various organizations including Massachusetts Continuing Legal Education, Council on Education in Management, Lorman Education Services, the Boston Bar Association, and several chambers of commerce.

While attending Boston College, he received the John A. McCarthy, SJ Award for the most distinguished Scholar of the College thesis.