Earlier this month, the Eighth Circuit Court of Appeals issued an opinion that may make it more difficult for employees in that Circuit to assert claims under the American with Disabilities Act (“ADA”) and Family and Medical Leave Act “(FMLA”) in certain circumstances. Rask v. Fresenius Medical Care North America, ___ F.3d ___, 2007 WL 4258620.
Rask was a patient care technician at two kidney dialysis clinics who had a long history of depression and unpredictable absences from her job. After Rask was terminated, she sued her former employer under the ADA, the Minnesota Human Rights Act (“MHRA”) and the FMLA. The district court granted summary judgment in favor of the employer. Rask appealed, and the Court of Appeals affirmed the district court’s decision.
With respect to Rask’s ADA and MHRA claims, the Court reiterated its consistent holding that regular and reliable attendance is an essential element of most jobs. The Court further noted that Rask cared for seriously ill patients in need of dialysis and thus did not have the type of job that could be performed off site or put off until another time. Because Rask made no showing that her employer could staff its operations without her on short notice, the Court held that Rask failed to show that she was able to perform the essential functions of her job without an accommodation.
The Court then examined whether Rask had met her burden of demonstrating that she could perform the essential functions of her job with an accommodation. In this regard, the Court held that Rask’s employer had no duty to accommodate her because she failed as matter of law to provide sufficient notice of her need. The Court noted that where the disability, resulting limitations, and necessary reasonable accommodations are not open, obvious, and apparent to the employer, as is often the case with mental disability, the initial burden rests primarily on the employee to specifically identify the disability and resulting limitations. Rask’s statement to her supervisors that she might miss a day or two of work because she was having problems with her medication was not enough to meet this burden.
Finally, the Court held that Rask did not propose accommodations that were reasonable, and that “[a]llowing her to be absent cannot as a matter of law be a reasonable accommodation given the circumstances of Ms. Rask’s employment.” The court further held that the duty to accommodate “does not extend to the provision of adjustments or modifications that are primarily for the personal benefit of the person with the disability,” as opposed to adjustments that assist an individual in performing the duties of a particular job.
With respect to Rask’s FMLA claim, the Court held that Rask failed to put her employer on notice that she needed FMLA leave. The court concluded that the definition of “serious health condition” under the FMLA does not include depression in all its forms. Rask did not give her supervisors any details about her depression, its severity, or any incapacity that it might give rise to. The Court further held that the side effects that resulted from Rask’s medication were not covered by the FMLA because there was no evidence they were a “chronic health condition.”
This decision will strengthen the argument that reliable attendance is an essential job function with respect to many jobs. We will be watching the Rask decision carefully to see if its reasoning is adopted in other Circuits.
From all of us at Keesal, Young and Logan, best wishes for a healthy and prosperous New Year!
Keesal, Young & Logan Employment Group