June 2009
A Minnesota court recently upheld an employer's decision to terminate an employee who was unable to return to work following a period of Family and Medical Leave Act (FMLA) leave. The employee had a known history of medical issues, including Hodgkins disease, a suppressed immune system, and then cancer (among other conditions). On April 6, the city reassigned the employee to a new job and department, but shortly thereafter the employee needed to undergo cancer treatment therapies, so the city offered him FMLA time. As the employee's FMLA expiration approached, he found additional time off to be medically necessary. He asked and the city granted him an additional two weeks of FMLA leave. Before this extension expired, however, the employee informed the city that he would not be able to return to his job (custodian) and that he would like a job in a different department (Parks & Recreation), which he believed he could perform. There were no openings in the Parks & Recreation Department, so the city denied the transfer request. Shortly thereafter, the FMLA extension expired and having failed to return to work, the employee was fired by the city.
The court supported the city's decision to fire the employee, finding that the employee was not qualified for the custodian's position any longer and because there were no openings in the Parks & Recreation Department. It is worth noting that the city additionally made diligent efforts to work with the employee while he was on leave to determine the extent of his work restrictions, and the employee's failure to respond to the city's attempts were important in the court's decision. Employers are reminded that they are responsible for working with (known) disabled employees who have requested accommodations to ascertain whether they can be reasonably accommodated within their job description. If they cannot, then employers should examine open positions for which the employee might be qualified to perform. As this court points out, there is no requirement that employers create new jobs for disabled employees, even though the employee might request that one be created to accommodate him or her.
Questions? Please contact WS Shareholder and Senior Attorney Kevin Mosher in our Minneapolis, MN office at (952) 746-1700, or kevin.mosher@wesselssherman.com.
