The Challenge of Mental Health and Impairment in the Workplace:  Compassion, Accommodation, and Discipline[1]

Sheila Engelmeier
Engelmeier & Umanah, P.A.
121 South Eighth Street
Suite 1300
Minneapolis, MN 55402
(612) 455-7723
www.e-ulaw.com

Thomas E. Marshall
Engelmeier & Umanah, P.A.
121 South Eighth Street
Suite 1300
Minneapolis, MN 55402
(612) 455-7732
www.e-ulaw.com

Sheila Engelmeier, a co-founder of Engelmeier & Umanah, approaches every legal problem with both considerable intellect and common sense. Her first priority is always avoiding a lengthy legal battle. When proactive planning does not facilitate a swift resolution, Sheila is an aggressive litigator who strongly advocates her clients’ positions. Creative and persistent, Sheila was described by one client as “the edge that made the difference” in that company’s success in a hard-fought action. After her first few years of practice, she has focused a significant part of her practice on employment matters, alternative dispute resolution and issues facing the early childhood education industry. Sheila has been named a “Super Lawyer” on many occasions, a “Top 50 Woman Super Lawyer,” “Top 100 Minnesota Super Lawyer” and “Top 40 Employment Super Lawyer” by Minnesota Law & Politics, a “Power 30 – Top Labor and Employment Lawyer” by Minnesota Lawyer and was selected by the Business Journal as a “Woman to Watch” in the Twin Cities’ business community.

Sheila’s tenacity and attention to detail make her extremely successful in handling employment matters. She regularly trains employers on a wide variety of management issues, such as dealing with the disabled employee. She also assists both companies and executives in negotiating intricate employment agreements. She has handled the full panoply of employment litigation matters, from restrictive covenants to leave, accommodation, discrimination or sexual harassment cases. Sheila is veteran both in administration tribunals and in court handling disputes about workplace worries from “soup to nuts” (sometimes literally). She’s handled everything from hiring to firing, including employee theft and contract disputes; she litigates post-employment fights about unfair competition and misuse of corporate property; and she assists companies in developing effective selection and performance management programs.

Introduction

Disabilities arising from mental illness present a major issue for the American workforce. Although exact numbers are impossible to ascertain, the ADA National Network estimates that nearly 44 million adult Americans – 18.5% of the U.S. population – experience a mental health impairment in a given year, while approximately 3.6% Americans lives with a serious mental illness like schizophrenia or bipolar disorder.^[2] Mental ailments often amount to legally-recognized disabilities – indeed, mental impairments have been a part of the Americans with Disabilities Act (ADA) since Congress adopted the law in 1990 and especially since the passage of the Americans with Disabilities Amendments Act (ADAAA), effective in 2009.  See below. This broad category of disability presents some unique challenges for employers. For example, mental illnesses may be harder to recognize than physical ones; they may go undiagnosed or unnoticed even by the employees themselves for years. Additionally, when properly recognized, employers face uniquely difficult issues when it comes to accommodating, coaching, disciplining and terminating a disabled employee suffering from mental illness or a mental health impairment.

This article examines these challenges under the ADA, some state law and more. To effectively navigate this treacherous area, employers must be familiar with each of these statutory frameworks, and mindful of a plan to avoid running afoul of any of them. This article discusses three basic issues particularly germane to helping and handling employees who have or may have a mental health disability.

The challenges faced by disabled employees continue to permeate workplaces, and relatedly, workplace litigation, more than 15 years after the ADAAA.^[3] Therefore, savvy employers must be well aware of the history and current application of their legal obligations regarding accommodation.

1. 1. Employer notice of employee disability issues in the mental health context and the “regarded as” conundrum.

As an initial matter, employers must understand when their legal obligations to a disabled employee begin. Although the law generally anticipates that the employee will inform their employer of a health problem that may affect job performance, some courts have found that the employer is put on notice simply by certain circumstances, triggering their obligations (and liability) under the law.^[4]

1. 1. ADA Basics^[5]

Although this article discusses mental illness issues through the lenses of a variety of statutory schemes, we begin with the ADA because it is the most important, the most pervasive, and the most influential.

As a practical matter, the ADA applies to employers who in any way engage in interstate activity.  With respect to “size” limitations, its provisions apply to employers who employ 15 or more employees 20 weeks of the calendar year (current or preceding).^[6] The ADA protects qualified disabled employees from discrimination in two basic ways; (1) by prohibiting differential treatment of disabled employees; and (2) by imposing an affirmative duty to reasonably accommodate a qualified employee with a disability, unless doing so would impose an undue hardship on the employer.^[7]

Absent direct evidence of discrimination, the initial measuring stick for differential treatment based on disability is the same prima facie case applicable in any employment discrimination matter. The employee must show: (1) they are in a protected class (in this case, disabled); (2) they suffered adverse employment action; (3) they are a “qualified individual”; and (4) the employer did not subject a nonprotected class employee (in this case, a non-disabled employee) to the adverse employment action, or there is some other circumstances giving rise to an inference of discrimination.^[8]

The ADA contains three separate definitions of “disability.” Under the law an individual is disabled if they have “a physical or mental impairment that substantially limits one or more major life activities”^[9]; has a record of such an impairment;^[10] or is “regarded as” having such an impairment.^[11]

Traditionally, an “adverse employment action” consists of a discipline, termination of employment, demotion or similar action by an employer. For example, an employee reassigned to a more stressful job with additional duties historically, under the federal law, was generally adjudged not to have experienced “adverse employment action.”^[12] Generally, federal courts strictly construe that phrase, holding that changes in the employee’s position must cause a materially significant disadvantage to the employee, such as a change in title, salary or benefits, to qualify as adverse employment action.^[13]  However, the law is trending towards lessening the threshold of what is enough to be adverse employment action for purposes of the discrimination law, particularly in state courts, such as Minnesota.^[14]

Under the ADA, a qualified individual with a disability is a person who can perform the essential functions of the position with or without reasonable accommodation.^[15] The term “essential functions” includes only the fundamental duties of the job, and does not include the marginal functions of the position.^[16] Functions might be essential if the position exists to perform them, if only a limited number of employees can perform them, or if they are highly specialized.^[17] Once the obligation is appropriately triggered (as discussed below), both the disabled employee and his or her employer are expected to engage in a good faith interactive process to identify what accommodation will be reasonable and appropriate.^[18]

2. Major Changes Under the ADAAA

The ADAAA expanded the definition of “disability” and thus broadened the scope of protection for employees under the ADA. For example, regulations enacted by the Equal Employment Opportunity Commission (EEOC) to implement the amendments recognize the operation of major bodily functions as major life activities, meaning that any physical or mental impairment that substantially limits a major bodily function (including brain function^[19]) can be considered a disability under the ADAAA. Such impairments, due to court decisions limiting the application of the law, did not fit well into the pre-ADAAA definition of disability. The ADAAA regulations also clarified that the determination of whether an impairment substantially limits a major life activity must be made without consideration of the ameliorative effects of mitigating measures, such as medication,^[20] psychotherapy or behavioral therapy.^[21] In addition, an impairment that is episodic or in remission is still considered a disability if it substantially limits a major life activity when active. Examples of mental health disorders falling into this category include major depressive disorder, bipolar disorder, posttraumatic stress disorder, obsessive compulsive disorder and schizophrenia.^[22] By making it easier for individuals to bring ADA claims for discrimination on the basis of disability, the ADAAA increased the number of individuals entitled to request and receive reasonable accommodation.^[23]

1. Post ADAAA, “Regarded As” Disability Claims Have Been Easier for Employees

In addition to protecting individuals with a known disability or a record of a disability, the ADAAA also protects individuals who are “regarded as” having a disability – even if the individual does not actually have a disability. The purpose of the “regarded as” section of the ADA is to “combat ‘archaic attitudes, erroneous perceptions, and myths’ working to the disadvantage of the disabled or perceived disabled.”^[24] To that end, an individual is “regarded as” disabled under the ADAAA if the individual establishes she was subjected to an action prohibited by the Act (e.g., failure to hire, demotion, refusal to promote, termination, etc.) based on the employer’s belief that the employee has an actual or perceived physical or mental impairment that is not transitory and minor, whether or not the impairment limits or is perceived to limit a major life activity.^[25]

As to reasonable accommodation, the only explicit change made by the ADAAA was a clarification that employers need not accommodate individuals “regarded as” having a qualified impairment.^[26]

Coverage under the “regarded as” prong of the definition of disability is not intended to be difficult to establish.^[27] One case, analyzing “regarded as” claims pre- and post–ADAAA, makes this point quite clear. In that case, the employer perceived its employee as disabled prior to the effective date of the ADAAA, and that perception continued well after the ADAAA’s effective date. The court separated the employee’s “regarded as” claims and the associated conduct that fell before the effective date (pre-ADAAA) from that which occurred after (post-ADAAA).^[28] In so doing, the court held that the employee failed to establish that his impairment was (or was perceived as being) “substantially limiting” as applied to the claims arising prior to the effective date of the ADAAA, but found there was sufficient evidence for the employee to satisfy the lesser, post-ADAAA standard for the claims that involved events occurring after the effective date of the ADAAA.^[29]

Mere awareness of an employee’s problems with depression may be enough to establish “regarded as” disability. In Lizotte v. Dacotah Bank, a plaintiff bank executive suffered from depression.^[30] After a suicidal episode, the police took custody of the executive and committed him to a psychiatric inpatient facility for four days.^[31] His employer, the defendant bank, became aware of this event and placed the executive on leave explaining, in a letter, “the impact of [his] action in the community and on the ability to perform [his] job.”^[32] The bank later offered him a severance package, which he accepted.^[33]

Denying the bank’s motion for partial summary judgment, the district court concluded that a reasonable jury could find that the bank management regarded the executive as disabled. As evidence in support of this finding, the court noted that several employees were aware of the suicidal episode, and others were aware that he was seeking treatment for depression. Therefore, the court reasoned, the executive established a genuine issue of material fact as to whether or not he was disabled under the ADA.

1. When Doing “the Right Thing” Goes Wrong

Sometimes an employer’s actions to handle employee complaints or even to help a struggling employee can come back to burn them. For example, in a venerable Ninth Circuit case, an employer’s efforts to help and to discipline a mentally ill employee were later used as evidence that the employer regarded him as disabled. In Holihan v. Lucky Stores, Inc., the plaintiff employee was a grocery store manager who was the subject of numerous harassment complaints by his subordinates.^[34] The defendant employer grocery chain met several times with the employee, asking initially if he was having any personal problems and encouraging him to seek counseling; the employee denied he was having any problems and also denied the complaints about his behavior.^[35] When the complaints persisted, the employer offered the employee a choice between suspension while an investigation was conducted or a leave of absence and counseling.^[36] The employee chose to take the leave, extended it several times, and sued after the employer terminated him months later.^[37] The district court granted summary judgment to the employer, finding that the employee was not actually disabled.^[38]

The Ninth Circuit Court of Appeals reversed. Although the court agreed that the plaintiff was not “actually disabled”, the court held that the plaintiff had presented genuine issues of material fact that the employer regarded him as disabled.^[39] Specifically, the court cited the meetings between the two parties, and in particular the fact that the employer had strongly encouraged the employee to seek counseling as evidence that the employee was regarded as disabled.^[40]

Although Holihan is an older case and would likely be analyzed differently today, the same issues continue to threaten employers through the years. For example, in 2011, in a district court case in the Ninth Circuit, an employer’s response to a sexual harassment complaint actually ended up helping the employee who was the subject of the complaint to substantiate a claim that she was “regarded as” disabled.^[41] The plaintiff in Kagawa v. First Hawaiian Bank/Bancwest Corp. was a bank teller described herself as a “mystic” and claimed to hear God’s voice directly.^[42] At a bus stop on the way in to work, the teller told another employee that God told her in a dream that the employee had romantic feelings for her.^[43] The other employee complained that he felt harassed by the teller.^[44] The bank took the employee’s complaint seriously and initiated several meetings between the teller, bank management and the human resources department.^[45] In one of the meetings, a bank manager wrote down that the teller “hears a voice” and would do whatever the voice told her to do.^[46] The bank ultimately fired the teller, and the teller sued for ADA disability discrimination and several other causes of action.^[47]

In response to the bank’s motion to dismiss for failure to state a claim, the teller successfully argued that the manager’s notes showed the bank regarded her as disabled because it failed to take account of her belief that the voice she heard was God’s voice, not “’just any voice.’” ^[48] Therefore, the teller argued, the bank regarded her “like ‘some insane person.’”^[49] The court sided with the teller, holding that the notes themselves as well as other elements of the bank’s disciplinary action, was enough to show that the bank regarded the teller as disabled, at least for the purposes of a motion to dismiss.^[50] Thus, the bank’s arguably correct and necessary response to a legitimate harassment complaint ended up being used against them in a suit by the harassing employee.

3. An Employer’s Obligations Begin When an Impairment is Known or Obvious 

Under the ADAAA, an employer must provide a reasonable accommodation to known [or obvious] physical or mental limitations of a qualified individual with a disability, unless it can show that the accommodation would impose an undue hardship.^[51] Consequently, in order for the employer to fully understand its obligations under the ADAAA, it must sufficiently understand when it is legally considered “on notice” of an employee or applicant’s need for assistance due to limitations caused by a medical condition such that its duty to provide a reasonable accommodation, if otherwise applicable, is triggered.

1. Employee’s Duty to Notify Employer

Where the potential need for an accommodation is not obvious to an employer, the employee must put the employer on notice of the disability and need (or request) for accommodation.^[52] The notice does not have to be in writing and the employee only needs to make the request in “plain English.” There are no specific buzz-words or phrases (e.g., “ADA,” “disability,” “reasonable accommodation,” etc.) to trigger the notice on the employer, but the employee must link the request for accommodation to a medical condition.^[53] The EEOC provides the following examples:

• An employee asks for time off because he is “depressed and stressed.”^[54]
• An employee tells her supervisor, “I’m having trouble getting to work at my scheduled starting time because of medical treatments I’m undergoing.”^[55]
• An employee tells his supervisor, “I need six weeks off to get treatment for a back problem.”^[56]

In all of the above examples, the employee provided sufficient notice to the employer because the employee (1) notified the employer of the need for accommodation and (2) tied that need for accommodation to a medical condition.  Importantly, however, in the above examples, it is unlikely that the employees provided the employers with enough information to demonstrate that a reasonable accommodation is absolutely required – they simply provided sufficient notice to the employers that an accommodation may be necessary. Thus, the employer must delve deeper into the circumstances through an “interactive process” – a topic that is discussed in Section II of this article.^[57]

2. The Requested Accommodation Must be to Address Impairments Resulting from a Disability

When the employee does not link the need for accommodation to a medical condition it is less likely that the employer had sufficient notice to trigger the duty to engage in an interactive process under the ADA. The EEOC provides the following examples of such situations:

• An employee asks to take a few days off to rest after the completion of a major project.^[58]
• An employee tells his supervisor that he would like a new chair because his present one is uncomfortable.^[59]

According to the EEOC, it is unlikely that either of the above examples would constitute sufficient notice to the employer to trigger an interactive process because the employee does not tie the request for accommodation to a medical condition.

3. Causal Connection

Case law also suggests that some level of specificity is required for an employer to be on notice of the link between a medical condition and a request for accommodation.^[60] For example, in one case a painter employed by a college maintenance department was experiencing problems related to depression and anxiety.^[61] Although the painter requested an unspecified “mental health leave”, he repeatedly refused to identify his condition specifically and explained only that he had “knots in [his] neck and pains in [his head].”^[62] The painter also expressed doubt about his ability to get confirmation of his condition from a doctor, and did not seek certification for leave under the FMLA.^[63] Affirming the defendant’s motion for summary judgment, the Court of Appeals for the 8^th Circuit held that the threshold level of specificity to put the employer on notice was not met “where the record contains no specific evidence that the painter’s limitations were apparent at work; where he repeatedly declined to reveal his diagnosis to his employer; [and] where he expressed doubt about his ability to confirm his diagnosis with a doctor…”^[64]

4. When a Condition is Obvious

An employee does not need to formally state the medical condition to the employer when it is obvious. For example, an EEOC Guidance hypothetical describes a new employee in a wheelchair requesting a different desk because the wheelchair does not fit under the desk that he is currently using.^[65] There, the medical condition is obvious to the employer as the employee is impaired such that he needs a wheelchair and that condition underlies the need for the accommodation of a different desk. In a Seventh Circuit case, when an employer knew of the employee’s mental illness from previous episodes, the employer was effectively on notice of the illness such that when subsequent episodes arose, the employer had a duty to engage in an interactive process to determine whether accommodations were available.^[66] In addition, even though the employer did not receive the letter from the employee’s doctor requesting an accommodation until after it made the decision to terminate him, “[a] few hours’ tardiness should not be the reason for cutting off the interactive process and cutting off a person’s rights under the ADA.”^[67] The court added, “[e]ven though the letter came after [the employer] decided to fire him, [the employer] could have used the opportunity it presented to reconsider the decision to terminate his employment ….”^[68] “[A]n employer cannot shield itself from liability by choosing not to follow up on an employee’s requests for assistance, or by intentionally remaining in the dark.”^[69] The EEOC still regularly cites the Seventh Circuit’s analysis in Bultemeyer.

5. Notice by Third-Parties

Employers sometimes overlook information received from third-parties when determining whether their duty to engage in the interactive process is triggered. Such an oversight could be devastating. An employer may be put on notice of the potential need for an accommodation by someone other than the individual employee who has the impairment. The request for accommodation may come from the employee herself or from third parties (e.g., a family member, friend, coworker, health professional, etc.). The EEOC provides the following example:

• An employee submits a note from a health professional stating that he is having a stress reaction and needs a week off. Subsequently, his wife telephones the Human Resources Department to say that the employee is disoriented and mentally falling apart and that the family is having him hospitalized. The wife asks about procedures for extending the employee’s leave and states that she will provide the necessary information as soon as possible but that she may need a little time.^[70]

In another example, a court held that a return-to-work release from a health care provider stating that the employee is able to perform the essential functions of the job with reasonable accommodation is sufficient to trigger notice to the employer.^[71] At that point, the practical employer should engage the employee to determine what, if any, reasonable accommodations are available for the employee.

Post-ADAAA, employers should not spend their time and resources on determining whether or not an individual is disabled. Instead, employers should focus on whether or not they can reasonably accommodate the individual. Generally, it is up to the employee (or their representative) to put the employer on notice of a disability and need for an accommodation, but an employer may be considered “on notice” when a medical condition and the need for accommodation is otherwise obvious. When the employer is on notice of a potential disability or need for an accommodation, the employer should act immediately by engaging in the interactive process, as set forth in more detail in Section II.

6. Special Rules for Interactive Process for Minnesota Employers

The ADAAA regulations note “it may be necessary for the [employer] to initiate an informal, interactive process with the individual with a disability in need of the accommodation.” 29 C.F.R. §1630.2(o)(3). (emphasis added) The MHRA goes one step further, effective July 1, 2021. Specifically, the MHRA provides:

“Reasonable accommodation” means steps which must be taken to accommodate the known physical or mental limitations of a qualified individual with a disability. To determine the appropriate reasonable accommodation the employer, agency, or organization shall initiate an informal, interactive process with the individual with a disability in need of the accommodation.”

Minn. Stat. §363A.08, subd. 6 (emphasis added). Under the MHRA, the onus is clearly on the employer to start the interactive process. (This change in the MHRA arose following the Minnesota Supreme Court’s curious statement in McBee v. Team Industries, 925 N.W.2d 222 (Minn. 2019), finding the MHRA did not require employers to engage in an interactive process to assess accommodations.) Moreover, the distinction between the ADAAA regulations may suggest the Minnesota state law requires more than the federal law with regard to employers’ interactive process efforts relating to employee accommodation.

• What Are an Employer’s Obligations to Reasonably Accommodate an Employee with a Mental Health Disability?

Once on notice of an employee’s need for a reasonable accommodation, an employer has an affirmative duty to engage in an interactive process to explore possible methods of reasonable accommodation.^[72] Post ADAAA, courts grapple with the question of what actions or communications are required to constitute a legally satisfactory interactive process.

1. Reasonable Accommodation and the Interactive Process: Basic Requirements

The EEOC’s interpretive guidelines provide that: “Once a qualified individual with a disability has requested provision of a reasonable accommodation, the employer must make a reasonable effort to determine the appropriate accommodation. The appropriate reasonable accommodation is best determined through a flexible, interactive process that involves both the employer and the [employee] with a disability.”^[73]  Good faith engagement in this process is a requirement for employers to avoid liability, unless no reasonable accommodation could have resulted from the process.^[74]

Under the ADAAA, the interactive process requires “(1) direct communication between the employer and employee to explore in good faith the possible accommodations; (2) consideration of the employee’s requests; and (3) offering an accommodation that is reasonable and effective.”^[75] In the Ninth Circuit, if a plaintiff has requested an accommodation that could plausibly enable her to perform the essential functions of her job, the employer’s obligations to engage in the interactive process are triggered.^[76]

The ADAAA regulations provide that an employer should analyze the job and determine purpose and essential functions, consult with the employee to ascertain precise job-related limitations imposed by the disability and how the limitations can be overcome with reasonable accommodation, identify potential accommodations and assess effectiveness together with the employee, and consider the employee’s preference in selecting accommodation.^[77] Notably, the EEOC’s interpretive guidance to the amended regulations focuses on a cooperative determination of the precise limitations stemming from the employee’s disability, not an employer’s need for extensive knowledge about the details of the disability itself.^[78]

Employers have available various resources to aid in the process of identifying those accommodations that might be appropriate in light of the employee’s condition and particular job duties. For example, the Job Accommodation Network (JAN) is a free service offered by the U.S. Department of Labor’s Office of Disability Employment Policy and the leading source of guidance in workplace accommodations. JAN’s website (www.askjan.org) provides helpful general information for both employers and employees and also allows users to search by disability to find information about typical symptoms and common accommodations. These resources include accommodation suggestions specific to mental illnesses.^[79]

The reasonable accommodation offered by the employer need not be the employee’s requested or preferred accommodation, and the employer may take into account cost and ease of providing the accommodation in choosing between several effective reasonable accommodations to offer the employee.^[80] However, if the employer views the employee’s requested accommodation as too burdensome, the employer should offer the employee available alternatives.^[81]

The employer’s duty to accommodate is a “continuing duty that is not exhausted by one effort,” which requires the employer to continue cooperatively problem-solving with the employee to find accommodations that “really work” if initial accommodations fail.^[82] This continuing duty has been a point of emphasis in Ninth Circuit cases and under various states’ law, including Minnesota.^[83] Where there is no objective standard by which to measure an accommodation’s effectiveness (such as a doctor’s time- or weight-based restrictions), the continuing communication process between employer and employee about effective accommodations is especially important, and multiple accommodations should be attempted if initial effectiveness is unclear.^[84] The Minnesota law encourages “thorough communication” and “documented good faith efforts” by employers to assess accommodations.^[85]

Where the need for an accommodation is not obvious, an employer may require an individual to provide documentation of a need before the employer is obligated to accommodate the need. A reasonable accommodation is “connected to what the employer knows about the employee’s precise limitations,” and the evidence the employer receives limits what the employer knows.^[86] In Core v. Champaign County Board of County Commissioners, the employer’s conversations with the employee’s nurse and subsequent actions based on the nurse’s “best recommendation” (notifying other staff about the employee’s sensitivity to perfume, allowing employee to work shorter days and providing her with her own office and bathroom) constituted sufficient participation in the interactive process, even though the employee had requested a “fragrance-free workplace” or telecommuting accommodation, which the court found unreasonable.^[87] In Conlon v. City & County of Denver, Colorado, the employee alleged a failure to accommodate after receiving a negative work review for absenteeism^[88], to which the employer responded by asking for an indication that part time work was medically necessary. The plaintiff’s claim failed at the summary judgment stage because he had previously submitted evidence of his ability to work full time and he did not provide any evidence responsive to the employer’s request to show that this ability had changed, despite his frequent absences from work.^[89]

However, an employee’s failure to provide specifically-requested information does not always mean that the employee has not met his or her duty to engage in the process. If the employer and employee engage in an ongoing information exchange, and the employee during that exchange provides the employer with a request for accommodation and information to assist the employer in its determination of reasonableness and undue hardship, the fact that an employee’s replies are not always directly responsive to employer requests may not be dispositive.^[90]

      B. The Employer’s Obligation to Act in Good Faith

Courts will consider whether an employer has made a good faith attempt to provide reasonable accommodation in deciding whether the employer’s obligations to engage in the interactive process have been met.^[91] In the Ninth Circuit, a plaintiff cannot prevail on a claim that the employer acted in subjective bad faith “without linking some rejection of a requested accommodation to bad faith or showing how an accommodation refused was reasonable on its face.”^[92] As noted previously, the MHRA mandates an employer must engage, including consulting with the disabled employee, in “documented good faith efforts to explore” an employee’s accommodation request, and alternatives thereto, prior to declaring the requested accommodation an undue hardship.^[93]

Evidence that the employer was acting in good faith may include evidence that the employer:

• Readily met with the employee, discussing any reasonable accommodations, and suggesting other possible positions for the employee.^[94]
• Communicated with the employee, requesting information about limitations, asking about the employee’s desired accommodation, and discussing alternative accommodations if the desired accommodation is too burdensome.^[95]
• Proposed counter accommodations.^[96]
• Explore alternative accommodations.^[97]
• Engaged in a “flexible give-and-take” to help the employee determine what accommodation would enable the employee to continue working.^[98]
• Showed “at least ‘some sign of having considered the employee’s request.’”^[99]

An employer does not necessarily demonstrate bad faith when:

• The employer refused to propose additional alternative accommodations after the employee turned down reasonable accommodations offered because of preference for a different accommodation.^[100]
• The employer placed the employee on medical leave while actively considering other long-term solutions to accommodate employee’s limitations.^[101]
• The employer did not discuss alternative accommodations with the employee after the employer granted the employee’s requested accommodation.^[102]
• The employer stopped engaging in the interactive process once an employee’s condition rendered her completely unable to work.^[103]
• The employer relied on the opinion of a medical professional in determining that the employee’s requested accommodation was not necessary.^[104]

An employer may be demonstrating bad faith when:

• The employer delayed engaging in the interactive process.^[105]
• The employer indicated a willingness to consider an accommodation, but impliedly conditioned any reasonable accommodation on improved performance.^[106]
• The employer forced the employee onto unpaid medical leave until the employee could return to work without restrictions, instead of considering at-work accommodations.^[107]
• The employer misconstrued the employee’s request; for example, by failing to acknowledge the limited scope of the request in determining the employee’s ability to perform an essential function with accommodation.^[108]   

       C. Responsibility for Breakdown in the Interactive Process

Both the employer and the employee have duties to engage in the interactive process, so when it breaks down, courts must attempt to isolate the cause of the breakdown and assign responsibility, which will determine liability.^[109] This means that an employee-plaintiff must present evidence showing that the employee attempted to engage in an interactive communication process with the employer to determine a reasonable accommodation and that the employer was responsible for any breakdown that occurred in that process.^[110]

An employee may be responsible for the breakdown if:

• The employee resigns after a meeting held to discuss an accommodation request at which assurances were made that the employer would process the request.^[111]
• The employee fails to follow through with the formal accommodation request requirements of an institution, such as providing information necessary to determine what accommodations might be required.^[112]
• The employee does not respond to the employer’s request for further medical information when the employer has an objectively reasonable concern that placing the employee in a certain job position would constitute a direct threat to the employee’s safety.^[113]
• The employee does not identify a reasonable accommodation permitting her to perform her essential job functions, and rejects out of hand offered accommodations such as alternative positions identified by the employer.^[114]

An employer may be responsible for the breakdown if:

• The employer offers an accommodation that is ineffective in light of the particular circumstances or unresponsive to the specific accommodations requested by the employee, without further addressing the employee’s concerns, even if the employee does not try out the proposed accommodations.^[115]
• The employer preemptively terminates the employee before an accommodation can be considered or recommended.^[116]
• The employer does not accommodate the employee on the theory that an employer is not required to reassign essential duties, if the essential functions of the position are disputed.^[117]
• The employer fails to engage in the interactive process because an employee made a verbal rather than a written request for accommodation.^[118]

         D. When Employees Pose a “Direct Threat” to Safety

Under certain circumstances the ADA allows employers to require that a disabled employee not pose a “direct threat” to the health and safety of others (or themselves) in the workplace.^[119] The “direct threat” provision functions as a defense and most courts view it as the employer’s burden to prove.^[120] While many direct threat cases focus on situations where the employee’s disability poses an incidental threat to others (for example by leading to accidents, or by causing an inability to perform essential job functions safely) the issue can also arise in situations where employers are concerned that an employee suffering from mental health issues might harm themselves or act out violently on the job.^[121]

The ADA allows employers to maintain qualification standards, job-selection criteria and tests that may operate to exclude workers suffering from disabilities, but only so as long as the employer can show that the standards are job-related, consistent with business necessity and that performance cannot be achieved with reasonable accommodation.^[122] One such qualification standard the law specifically allows is a requirement that an individual “not pose a direct threat to the health or safety of other individuals in the workplace.”^[123] Federal regulations implementing the law are more precise; the CFR defines a “direct threat” as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.”^[124] An alleged direct threat is to be determined based on “an individualized assessment of the individual’s present ability to safely perform the essential functions of the job” including “a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.”^[125] The factors to be considered include (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.”^[126]

Threats of violence, mass shootings and suicide can all indicate that a mentally ill individual poses a direct threat. Stebbins v. University of Arkansas concerned a student at the University of Arkansas who suffered from Asperger’s Syndrome, intermittent explosive disorder and other mental impairments.^[127] The student was expelled after making several offensive, profanity-laced statements to school officials; among many transgressions, the student threatened suicide, and threatened that if he did not get his medication, “there could be another Virginia Tech incident.”^[128] Multiple school officials became concerned that the student posed a serious threat; the student was suspended and ultimately subjected to a criminal trespass warning.^[129] The student sued, alleging that the school’s refusal to re-enroll him was a violation of Section 504 of the Rehabilitation Act.^[130]

Finding for the defendant, the court held that even if the plaintiff had established a prima facie case of disability discrimination, he could not prevail because the school had proved that the student posed a direct threat under all four factors.^[131] As to the nature of the risk, the court found that the plaintiff’s “Virginia Tech” statement went “far beyond” tactlessness; the court noted that the defendant was not required to prove that an actual threat was made, but rather that “those who heard his statements reasonably believed a threat was made.”^[132] Next, as to the duration of the risk, the court found that it could not be ascertained, but that school administrators had noted a pattern of behavior that seemed unlikely to improve.^[133] Furthermore, the court found that the risk was severe because the plaintiff potentially endangered the lives of everyone on campus.^[134] Finally, as to the probability of the risk, the court found that it was reasonable for the defendant to believe that there was a significant probability that the plaintiff would carry out his threats.^[135]

Messages via social media may raise genuine issues of material fact on the question of direct threat. In Peer v. F5 Networks, Inc., the defendant technology company knew the plaintiff employee was undergoing treatment for depression.^[136] In a Facebook message, the employee told a manager that she was having suicidal thoughts; later, she posted a note to her Facebook profile saying that her job felt “like a war zone” and that she “immediately started puking” upon arriving to work in the morning.^[137] Denying cross motions for summary judgment, the district court held that the plaintiff’s suicidal comments on and via Facebook had established genuine issues of material fact over whether or not the employee represented a direct threat.^[138] The court explained that neither party was entitled to judgment as a matter of law because the direct threat question is “precisely the sort of genuine issue that can only be resolved by the trier of fact.”^[139]

• Effectively Handling Communications with Health Care Providers^[140]

An important aspect of effectively handling employee accommodation issues involves an employer successfully navigating the communications, either directly or indirectly, with the employee’s health care professionals.  Reasonable accommodation issues involve the employer and employee communicating about what job modifications would overcome the employee’s limitations in performing the essential functions of their job.  In the context of a request for accommodation, an employee or employer may ask an employee’s healthcare provider to review the employee’s job description and opine on what alterations in the work situation would alleviate barriers to the employee performing the job.  The assessment of workplace modifications could involve an employer directly or indirectly communicating with an employee’s health care team.  Similarly, communications with employees’ health care providers often occur when assessing whether an employee poses a direct threat to the workplace (including to themselves or others).[141]  When making communication with an employee’s providers, employers must consider all the relevant laws – workers’ compensation, FMLA, privacy related to HIPAA and under state law including discrimination laws, as well as both the ADAAA and substantive rights arising under state anti-discrimination statutes and potentially even city and local ordinances.

1. Under the FMLA, Employers May Communicate with Employees’ Health Care Providers about Certification Issues (but not details about diagnosis or unrelated medical history)

The communication between employers and health care providers plays a crucial role in effectively administering employees’ rights under the Family and Medical Leave Act (FMLA). The FMLA grants eligible employees the right to take up to twelve workweeks of unpaid leave due to various reasons, including a serious health condition that renders the employee unable to perform their job duties.^[142] Under specific circumstances, employers may inquire about the need for FMLA leave and even request medical examinations to ascertain the legitimacy of the employee’s health condition.^[143] If an employee fails to provide a complete and sufficient medical certification for their FMLA leave, employers are entitled to make additional inquiries to clarify the situation.^[144]

Employers have a limited right to communicate with an employee’s healthcare provider to authenticate the information provided on the medical certification form. The FMLA permits designated agents of the employer, such as healthcare providers, HR professionals, leave administrators, and management officials, to make such inquiries, while direct supervisors are prohibited from doing so.^[145] Additionally, employers are not in violation of HIPAA regulations if they directly contact an employee’s healthcare provider to clarify information on the medical certification form.^[146] Further, if an employer has reason to doubt the validity of the certification, they may require the employee to obtain a second opinion from a healthcare provider designated or approved by the employer.^[147]

Recertification from an employee’s healthcare provider may be requested by employers periodically, but generally not more often than every 30 days, unless there are significant changes in the employee’s condition or the employer doubts the validity of the certification.^[148] Moreover, concerns regarding an employee’s return from FMLA leave must comply with the ADA.^[149] Employers must ensure that any fitness for duty examination conducted in connection with an employee’s return from FMLA leave is job-related and consistent with business necessity, as mandated by the ADA. Any fitness for duty assessment required for purposes of a return from FMLA also must be sufficiently tailored to assessing the employee’s ability to perform essential job functions.^[150]

• Employers Have More Rights to Communicate with Health Care Providers about Employees Exercising Their Rights Under the Workers’ Compensation Laws

In dealing with employees related to workers’ compensation injuries employers may inquire about more than just a medical certification. For example, in the context of Minnesota’s Workers’ Compensation laws, employers may request medical examinations for injured employees making compensation claims.^[151] However, the release of medical records is governed by the Minnesota Health Records Act, which permits the release of records without patient consent if specifically authorized by law.^[152] The intersection of workers’ compensation laws and other laws and regulations, such as HIPAA, ensures that protected health information can be disclosed to the extent necessary to comply with workers’ compensation laws.^[153] Typically, employers should leave communications with respect to employees dealing with work-related injuries to the professionals – the insurers or self-insured administrators of the workers’ compensation programs.

• Some Guide Posts for ADA Compliance For Employers Communicating with Health Care Providers About Employees Seeking/Needing Accommodation – Job Related and Consistent with Business Necessity and More.

Provided an employer’s request for medical information is job-related and consistent with business necessity, the ADA does not prohibit employer representatives from directly contacting healthcare providers when medical information is needed in support of a request for accommodation. If course, healthcare providers cannot share patients’ protected health information with employers who contact them directly without first having formal authorization to do so (DHHS, 2016). The HIPAA Privacy Rule^[154] restricts the disclosure of protected health information by healthcare providers to anyone without patient consent, including employers. The HIPAA Privacy Rule sets the national standard for protecting individuals’ medical records and other personal health information.  (There are also state laws regarding the privacy of medical records, as noted in Section III (B) above.)

Generally, a disability-related inquiry or medical examination of an employee may be “job-related and consistent with business necessity” when an employer “has a reasonable belief, based on objective evidence, that: (1) an employee’s ability to perform essential job functions will be impaired by a medical condition; or (2) an employee will pose a direct threat^[155] due to a medical condition.”^[156] Disability-related inquiries and medical examinations that follow up on a request for reasonable accommodation when the disability or need for accommodation is not known or obvious also may be job-related and consistent with business necessity. In addition, periodic medical examinations and other monitoring under specific circumstances may be job-related and consistent with business necessity.^[157]

Understanding the intricacies of communication between employers and health providers is essential for navigating legal obligations under the anti-discrimination laws and healthcare regulations. Food for thought for employers:

1. Remember, employees’ health care information is private. Think about HIPAA. However, both the MHRA and ADAAA also guarantee some level of privacy to employees.
2. MAKE SURE YOU HAVE THE APPROPRIATE FULLY EXECUTED AUTHORIZATION FROM THE EMPLOYEE.
3. Only persons with a need to know employees’ health care information should possess that private healthcare data, which should be stored apart from the rest of the personnel file. Almost no one within an employer’s organization has a need to know. For accommodation purposes, those assessing job modifications do not need to know a diagnosis or medical record information. They need to know the employees’ limitations and the health care providers’ suggestions for alteration of the job. The employers’ focus should be on assessing whether the job modification is feasible and effective – not on the intricacies of the employees’ health condition or their health history. According to the EEOC, “the principal test in selecting a particular type of accommodation is that of effectiveness, i.e., whether the accommodation will enable the person with a disability to perform the essential functions of the job.”[158]
4. As much as possible, communicate in writing with the health care providers demonstrating your focus on job-relatedness and business necessity. (Then employers do not have to rely on providers’ notes about contact between them, which can be inaccurate.)
5. Send letters to health care providers both through the employee and, if no answer, directly.
6. Employers should memorialize, in writing, any verbal communication with providers, after the communication.
7. Given that employers need information and assistance from providers, be polite.

• What Must an Employer Be Careful About in Considering Discipline of an Employee with a Mental Illness or Mental Health Impairment? 

Just because an employee suffers from a disability does not mean that they are immune from any disciplinary action or termination. However, employers should be mindful of a number of issues when it comes to applying disciplinary rules and avoiding later claims of reprisal or discrimination, particularly when dealing with employees with mental illness and mental health disabilities. This section will begin by explaining the basics of disciplining and terminating a non-performing employee with a disability. Next, we will discuss issues of reprisal in the disability context.

1. 1. Disciplining a Non-Performing Employee with a Disability

Under the ADA, employers are expected to apply the same performance and conduct standards to all employees alike,^[159] whether or not they are persons with a disability.^[160] However, a disciplinary action must be job-related, consistent with business necessity and applied to all employees.^[161] According to the EEOC, determining whether or not a conduct rule is “job-related and consistent with business necessity” depends on several factors, including “including the manifestation or symptom of a disability affecting an employee’s conduct, the frequency of occurrences, the nature of the job, the specific conduct at issue, and the working environment.”^[162] The EEOC notes that “[t]hese factors may be especially critical when the violation concerns ‘disruptive’ behavior which, unlike prohibitions on stealing or violence, is more ambiguous concerning exactly what type of conduct is viewed as unacceptable.”^[163]

If an employee informs their employer of a disability in response to a disciplinary action, the employer may still enforce the action. If the standard penalty for the infraction is termination, the employer may terminate the employee without running afoul of the ADA.^[164] However, if the penalty is something less than termination, such a notice triggers the employer’s responsibility to engage in the interactive process and explore a reasonable accommodation.^[165]

             B.    Reprisal (a/k/a Retaliation)

In general terms, the ADA, state and federal disability laws and other statutory frameworks each prohibit retaliation for a disabled person’s exercise of their rights.^[166]  The legal term generally used to refer to such retaliation is “reprisal.”^[167]

Absent direct evidence of an intent to retaliate, to prove a prima facie case of reprisal, the employee must show:  (a) that they engaged in statutorily protected conduct; (b) an adverse employment action by the employer^[168]; and (c) a causal connection between the two.^[169] (i.e., that the plaintiff was subjected to an adverse employment action because of their involvement in the protected activity.)

1. Adverse Employment Action

The standard for “adverse employment action” federal courts use for purposes of a reprisal claim is a lesser standard than that used for purposes of a discrimination claim. In Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006), the United States Supreme Court ruled that if an employee is: (a) assigned to perform more physically demanding work by being shifted from forklift duty to standard track laborer tasks and (b) suspended for 37 days (even though the suspension was later reversed and back pay was paid for the period of the suspension) those actions are enough to be adverse employment action in the context of a retaliation case.

The Burlington decision is important because of two clarifications by the Supreme Court. First, the Court recognized that, unlike the anti-discrimination provision, the anti-retaliation provision of Title VII does not confine the actions and harms it forbids to those related to employment or occurring at the workplace. Therefore, under this standard, an employer is liable for retaliation against an employee by conduct not directly related to their employment or by causing the employee harm outside the workplace.

Second, the Court noted that Title VII’s anti-retaliation provision applies only to those employer actions that would have been “materially adverse to a reasonable employee or job applicant,” or “harmful to the point that [the employer’s actions] could well dissuade a reasonable worker from making or supporting a charge of discrimination.”^[170] The Court ruled that what is “materially adverse” and what would “dissuade a reasonable worker” are context-specific and must be analyzed under the facts of a particular situation.

2. How Does An Employee Prove a “Causal Connection?”

Proving causation for a reprisal claim may vary considerably by statute. In Univ. of Tex. Sw. Med. Ctr. v. Nassar, the Supreme Court arguably changed the standard for proving a causal connection for purposes of a federal Title VII retaliation claim.^[171] The Court held that a Title VII retaliation plaintiff “must establish that their protected activity was a but-for cause of the alleged adverse action by the employer.”^[172] The Court explained that this standard “requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer. “^[173] The five-to-four decision was countered by a blistering dissent written by Justice Ginsburg who took the unusual step of reading her dissent from the bench.^[174]

Over time, the “but-for” standard articulated in Nassar has not been interpreted too differently from the prior standard (“motivating factor”).^[175]  Specifically, in Bostock v. Clayton County, 590 U.S. 644 (2020), Justice Gorsuch provided a detailed analysis of what Title VII means when it says “because of,” noting that “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause . . . When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff’s was one but-for cause of that decision, that is enough to trigger the law.” (Emphasis in the original.)

Justice Gorsuch also directly addressed whether the protected characteristic/conduct at issue must be the “sole” but-for cause and found that “liability can sometimes follow even if [the protected characteristic/conduct]  wasn’t a but-for cause of the employer’s challenged decision.” (Emphasis in the original.) Justice Gorsuch went on to note that but-for causation “continues to afford a viable, if no longer exclusive, path to relief under Title VII.” After Bostock, an individual can use either the traditional “but-for” causation standard or the lesser mixed-motive standard to prove disparate treatment. Furthermore, in Title VII retaliation cases, or others that currently utilize only the “but-for” causation standard, that the standard does not require that the protected characteristic/conduct be the one and only cause of the adverse action. Rather, the employee plaintiff must prove that the protected characteristic/conduct was a but-for cause. In other words, but-for the individual’s protected characteristic/conduct, the employer would not have taken the adverse employment action. The existence of other, legitimate reasons does not necessarily absolve the employer.

At the state court level, causation standards are less demanding.^[176] The Minnesota JIGs suggest Minnesota courts still follow the “a motivating factor” standard for state law cases, including MHRA reprisal cases.^[177] Similarly, Washington courts apply an arguably more lenient standard than but-for causation in retaliation cases. Under the Washington Law Against Discrimination (WLAD) the causal link is established if the plaintiff can show that participation in a protected activity was a “substantial factor” in the employer’s decision to take an adverse employment action.^[178] Although WLAD closely tracks federal law on several points, Washington courts have declined to apply the Nassar but-for standard to WLAD retaliation claims.^[179]

3. Does the Employee’s Underlying Discrimination Claim Have to be Valid in Order For the Employee to be Successful in a Claim of Reprisal? 

The fact that the employer’s position prevails in the underlying claim does not preclude a finding that there was adverse action motivated by retaliation.^[180]

4. Can an Employer be Charged with Reprisal for Actions Taken Against a Former Employee?

The United States Supreme Court and several state courts have held that, unlike some of the other discrimination laws, the duty to refrain from retaliation does not necessarily end when the employment relationship ends.  In Robinson v. Shell Oil Co., 519 U.S. 337, 339, 117 S. Ct. 843 (1997), the Court held that providing a negative reference for a former employee who had filed an EEOC charge of discrimination constituted unlawful retaliation in violation of Title VII. Some courts have also held that employees can succeed in retaliation cases even when both the protected activity and the retaliation occur post-employment.^[181]

5. Coverage and Individual Liability

The issues of coverage and whether a manager can be held individually liable will be governed by the statute under which the employee alleges they asserted her/his rights. Generally, courts have construed Title VII remedies as precluding individual liability.^[182] Courts also agree that individual liability is not possible under the ADA.^[183] State laws may vary on this point.  For example, the MHRA provides for individual liability for reprisal.^[184] Likewise, under the Washington’s state anti-discrimination law, supervisors or managers may be held personally liable.^[185]

Conclusion

Mental illness impairments remain an area of challenge and volatility for employers. Employers start by assessing what matters most. Of course, workplace safety must come first. Next, the employer should focus on whether and how it can help its employee succeed in the role; this includes accommodation where necessary.  After that, however, some will value priorities differently than others. Is avoiding litigation the next-most important employer objective?  Or, is providing assistance to a troubled employee the next-most important employer objective? And, can it depend on the situation? What about consistency? Employers must answer these questions and take care to navigate these treacherous waters carefully.

APPENDIX A^[186]

The EEOC Guidance on Disability-Related Inquiries.  (See, EEOC Notice no. 915.002; https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#4; published on 7/27/00, and EEOC still follows post-ADAAA)

Enforcement Guidance: Enforcement Guidance: Workers’ Compensation and the ADA;

https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada

Can I Require Medical Examinations or Ask Questions About an Individual’s Disability?

It is unlawful to:

• ask an applicant whether she is disabled or about the nature or severity of a disability, or
• to require the applicant to take a medical examination before making a job offer.

You can ask an applicant questions about ability to perform job-related functions, as long as the questions are not phrased in terms of a disability. You can also ask an applicant to describe or to demonstrate how, with or without reasonable accommodation, the applicant will perform job-related functions.

After a job offer is made and prior to the commencement of employment duties, you may require that an applicant take a medical examination if everyone who will be working in the job category must also take the examination. You may condition the job offer on the results of the medical examination. However, if an individual is not hired because a medical examination reveals the existence of a disability, you must be able to show that the reasons for exclusion are job related and necessary for conduct of your business. You also must be able to show that there was no reasonable accommodation that would have made it possible for the individual to perform the essential job functions.

WHAT/WHEN CAN EMPLOYER INQUIRE ABOUT.

With Regard to Accommodation Issues:

Example A: For the past two months, Sally, a tax auditor for a federal government agency, has done a third fewer audits than the average employee in her unit. She also has made numerous mistakes in assessing whether taxpayers provided appropriate documentation for claimed deductions. When questioned about her poor performance, Sally tells her supervisor that the medication she takes for her lupus makes her lethargic and unable to concentrate.

Based on Sally’s explanation for her performance problems, the agency has a reasonable belief that her ability to perform the essential functions of her job will be impaired because of a medical condition.^[187] Sally’s supervisor, therefore, may make disability-related inquiries (e.g.,ask her whether she is taking a new medication and how long the medication’s side effects are expected to last), or the supervisor may ask Sally to provide documentation from her health care provider explaining the effects of the medication on Sally’s ability to perform her job.

Example B: A crane operator works at construction sites hoisting concrete panels weighing several tons. A rigger on the ground helps him load the panels, and several other workers help him position them. During a break, the crane operator appears to become light-headed, has to sit down abruptly, and seems to have some difficulty catching his breath. In response to a question from his supervisor about whether he is feeling all right, the crane operator says that this has happened to him a few times during the past several months, but he does not know why.

The employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat and, therefore, may require the crane operator to have a medical examination to ascertain whether the symptoms he is experiencing make him unfit to perform his job. To ensure that it receives sufficient information to make this determination, the employer may want to provide the doctor who does the examination with a description of the employee’s duties, including any physical qualification standards, and require that the employee provide documentation of his ability to work following the examination.^[188]

With Regard to Workers’ Compensation Issues:

7. May an employer ask disability-related questions or require a medical examination of an employee either at the time s/he experiences an occupational injury or when s/he seeks to return to the job following such an injury?

Yes, in both instances, provided that the disability-related questions or medical examinations are job-related and consistent with business necessity.  This requirement is met where an employer reasonably believes that the occupational injury will impair the employee’s ability to perform essential job functions or raises legitimate concerns about direct threat.  However, the questions and examinations must not exceed the scope of the specific occupational injury and its effect on the employee’s ability, with or without reasonable accommodation, to perform essential job functions or to work without posing a direct threat.^[189]

8. May an employer ask disability-related questions or require a medical examination of an employee with an occupational injury in order to ascertain the extent of its workers’ compensation liability?

Yes.  The ADA does not prohibit an employer or its agent from asking disability-related questions or requiring medical examinations that are necessary to ascertain the extent of its workers’ compensation liability.

However, the questions and examinations must be consistent with the state law’s intended purpose of determining an employee’s eligibility for workers’ compensation benefits.  An employer may not use an employee’s occupational injury as an opportunity to ask far-ranging disability-related questions or to require unrelated medical examinations.  Examinations and questions must be limited in scope to the specific occupational injury and its impact on the individual and may not be required more often than is necessary to determine an individual’s initial or continued eligibility for workers’ compensation benefits.  Excessive questioning or imposition of medical examinations may constitute disability-based harassment which is prohibited by the ADA.^[190]

9. If an employee with a disability-related occupational injury requests a reasonable accommodation, may the employer ask for documentation of their disability?

Yes.  If an employee with a disability-related occupational injury requests reasonable accommodation and the need for accommodation is not obvious, the employer may require reasonable documentation of the employee’s entitlement to reasonable accommodation.  While the employer may require documentation showing that the employee has a covered disability and stating their functional limitations, it is not entitled to medical records that are unnecessary to the request for reasonable accommodation.^[191]

               CONFIDENTIALITY OF MEDICAL INFORMATION

10. Do the ADA’s confidentiality requirements apply to medical information regarding an applicant’s or employee’s occupational injury or workers’ compensation claim?

Yes.  Medical information regarding an applicant’s or employee’s occupational injury or workers’ compensation claim must be collected and maintained on separate forms and kept in a separate medical file along with other information required to be kept confidential under the ADA.  An employer must keep medical information confidential even if someone is no longer an applicant or an employee.

The ADA allows disclosure of this information only in the following circumstances:

* supervisors and managers may be told about necessary restrictions on the work or duties of the employee and about necessary accommodations;^[192]

* first aid and safety personnel may be told, when appropriate, if the disability might require emergency treatment;^[193]

* government officials investigating compliance with the ADA must be given relevant information on request;^[194]

* employers may give information to state workers’ compensation offices, state second injury funds, and workers’ compensation insurance carriers in accordance with state workers’ compensation laws;^[195] and

* employers may use the information for insurance purposes.^[196]

OTHER QUESTIONS REGARDING MEDICAL INFORMATION AND INQUIRIES

…..7. May an employer ask an employee for documentation when s/he requests a reasonable accommodation?

Yes. The employer is entitled to know that an employee has a covered disability that requires a reasonable accommodation.^[197] Thus, when the disability or the need for the accommodation is not known or obvious, it is job-related and consistent with business necessity for an employer to ask an employee for reasonable documentation about his/her disability and its functional limitations that require reasonable accommodation.^[198]

Scope and Manner of Disability-Related Inquiries and Medical Examinations

10. What documentation may an employer require from an employee who requests a reasonable accommodation?

An employer may require an employee to provide documentation that is sufficient to substantiate that s/he has an ADA disability and needs the reasonable accommodation requested, but cannot ask for unrelated documentation.^[199] This means that, in most circumstances, an employer cannot ask for an employee’s complete medical records because they are likely to contain information unrelated to the disability at issue and the need for accommodation.^[200]

Documentation is sufficient if it: (1) describes the nature, severity, and duration of the employee’s impairment, the activity or activities that the impairment limits, and the extent to which the impairment limits the employee’s ability to perform the activity or activities; and, (2) substantiates why the requested reasonable accommodation is needed.

11. May an employer require an employee to go to a health care professional of the employer’s (rather than the employee’s) choicewhen the employee requests a reasonable accommodation?

The ADA does not prevent an employer from requiring an employee to go to an appropriate health care professional of the employer’s choice if the employee provides insufficient documentation from his/her treating physician (or other health care professional) to substantiate that s/he has an ADA disability and needs a reasonable accommodation^[201]. (emphasis added)  However, if an employee provides insufficient documentation in response to the employer’s initial request, the employer should explain why the documentation is insufficient and allow the employee an opportunity to provide the missing information in a timely manner.^[202] The employer also should consider consulting with the employee’s doctor (with the employee’s consent) before requiring the employee to go to a health care professional of its choice.^[203]

Documentation is insufficient if it does not specify the existence of an ADA disability and explain the need for reasonable accommodation.^[204]  Documentation also might be insufficient where, for example: (1) the health care professional does not have the expertise to give an opinion about the employee’s medical condition and the limitations imposed by it; (2) the information does not specify the functional limitations due to the disability; or, (3) other factors indicate that the information provided is not credible or is fraudulent. If an employee provides insufficient documentation, an employer does not have to provide reasonable accommodation until sufficient documentation is provided.

Any medical examination conducted by the employer’s health care professional must be job-related and consistent with business necessity. This means that the examination must be limited to determining the existence of an ADA disability and the functional limitations that require reasonable accommodation. If an employer requires an employee to go to a health care professional of the employer’s choice, the employer must pay all costs associated with the visit(s).^[205]

The Commission has previously stated that when an employee provides sufficient evidence of the existence of a disability and the need for reasonable accommodation, continued efforts by the employer to require that the individual provide more documentation and/or submit to a medical examination could be considered retaliation.^[206] However, an employer that requests additional information or requires a medical examination based on a good faith belief that the documentation the employee submitted is insufficient would not be liable for retaliation.

13. How much medical information can an employer obtain about an employee when it reasonably believes that an employee’s ability to perform the essential functions of his/her job will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition?

An employer is entitled only to the information necessary to determine whether the employee can do the essential functions of the job or work without posing a direct threat. This means that, in most situations, an employer cannot request an employee’s complete medical records because they are likely to contain information unrelated to whether the employee can perform his/her essential functions or work without posing a direct threat.^[207]

Disability-Related Inquiries and Medical Examinations Relating to Leave

15. May an employer request an employee to provide a doctor’s note or other explanation to substantiate his/her use of sick leave?

Yes. An employer is entitled to know why an employee is requesting sick leave. An employer, therefore, may ask an employee to justify his/her use of sick leave by providing a doctor’s note or other explanation, as long as it has a policy or practice of requiring all employees, with and without disabilities, to do so.^[208]

16. May an employer require periodic updates when an employee is on extended leave because of a medical condition?

Yes. If the employee’s request for leave did not specify an exact or fairly specific return date (e.g., October 4 or around the second week of November) or if the employee needs continued leave beyond what was originally granted, the employer may require the employee to provide periodic updates on his/her condition and possible date of return.^[209] However, where the employer has granted a fixed period of extended leave and the employee has not requested additional leave, the employer cannot require the employee to provide periodic updates. Employers, of course, may call employees on extended leave to check on their progress or to express concern for their health.

17. May an employer make disability-related inquiries or require a medical examination when an employee who has been on leave for a medical condition seeks to return to work?

Yes. If an employer has a reasonable belief that an employee’s present ability to perform essential job functions will be impaired by a medical condition or that s/he will pose a direct threat due to a medical condition, the employer may make disability-related inquiries or require the employee to submit to a medical examination. Any inquiries or examination, however, must be limited in scope to what is needed to make an assessment of the employee’s ability to work. Usually, inquiries or examinations related to the specific medical condition for which the employee took leave will be all that is warranted. The employer may not use the employee’s leave as a justification for making far-ranging disability-related inquiries or requiring an unrelated medical examination.

Example A: A data entry clerk broke her leg while skiing and was out of work for four weeks, after which time she returned to work on crutches. In this case, the employer does not have a reasonable belief, based on objective evidence, either that the clerk’s ability to perform her essential job functions will be impaired by a medical condition or that she will pose a direct threat due to a medical condition. The employer, therefore, may not make any disability-related inquiries or require a medical examination but generally may ask the clerk how she is doing and express concern about her injury.

Example B: As the result of problems he was having with his medication, an employee with a known psychiatric disability threatened several of his co-workers and was disciplined. Shortly thereafter, he was hospitalized for six weeks for treatment related to the condition. Two days after his release, the employee returns to work with a note from his doctor indicating only that he is “cleared to return to work.” Because the employer has a reasonable belief, based on objective evidence, that the employee will pose a direct threat due to a medical condition, it may ask the employee for additional documentation regarding his medication(s) or treatment or request that he submit to a medical examination.^[210]

[1] The authors thank Colin Thomsen for his hard work and dedication on this paper.

[2] Fact Sheet, Mental Health Conditions in the Workplace and the ADA, ADA National Network, https://adata.org/factsheet/health (last visited Apr. 23, 2024).

[3] According to the Bureau of Internet Accessibility, “many organizations fail to take the necessary steps: Each business hour in 2021 a separate lawsuit was filed under the Americans with Disabilities Act (ADA) for alleged digital accessibility failures.” https://www.boia.org/blog/how-much-do-reasonable-accommodations-cost-not-much#:~:text=Some%20key%20facts%20from%20the,annual%20cost%20to%20the%20organization; see, also, https://www.accessibility.com/complete-report-2021-website-accessibility-lawsuits.

[4]Bultemeyer v. Fort Wayne Community Schools, 100 F.3d 1281 (7th Cir. 1996) (holding an employer is on notice of [i.e., knows of] a need for accommodation by observing facts suggesting an employee needs accommodation, but is not able to ask for it by himself); see also, 29 C.F.R. § 1630.9 (a) (“It is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business.” (emphasis added); see also  Taylor v. Phoenixville Sch. Dist., 184 F.3d 296 (3d Cir. 1999), on remand at 113 F. Supp. 2d 770 (E.D. Pa. 2000) (School district had a duty to begin interactive process to find accommodation for mentally ill teacher because of knowledge of the performance issues her illness caused).

[5] Portions of this article are taken/adapted from an excellent article by Dana Sullivan, Sheila Engelmeier and their colleagues from the 2013 Pacific Coast Labor and Employment conference, titled Navigating Post-ADAAA Employment Relationships: The Interactive Process, Reasonable Accommodation, And The Regarded-As Dilemma.  Thanks, Dana, for allowing us to repeat some of that great foundational work here. It is more than a decade old now, but it has withstood the test of time.

[6] 42 U.S.C. §12111(5); 29 C.F.R. 1630.2(e).

[7] 42 U.S.C. §12112(a); 42 U.S.C. §12112(b)(5)(A).

[8] McDonnell Douglas v. Green, 411 U.S. 792 (1973); Denson v. Steak ‘n Shake, Inc., 910 F.3d 368, 370 (8th Cir. 2018); Brokken v. Hennepin Cnty., No. CV 23-1469 (JRT/DJF), 2024 WL 1382150, at *6 (D. Minn. Mar. 29, 2024). In Minnesota, to prevail on an employment-discrimination claim under the Minnesota Human Rights Act (MHRA) in connection with a disability, a plaintiff must show (1) the plaintiff has a “disability” as defined by the MHRA and (2) employment discrimination under the MHRA based on the disability. Minn. Stat. §§ 363A.03, subd. 12, .08, subd. 2. Discriminatory intent can be shown either by “direct evidence” of discrimination or by evidence that satisfies the three-part framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Hoover v. Norwest Priv. Mortg. Banking, 5 632 N.W.2d 534, 542 (Minn. 2001).

[9] 42 U.S.C. § 12102(1)(A).

[10] 42 U.S.C. § 12102(1)(B).

[11] 42 U.S.C. § 12102(1)(C).

[12] Harlston v. McDonnell Douglas Co., 37 F.3d 379 (8th Cir. 1994); As the Court in Haskell v. Centracare Health System, 952 F. Supp. 2d 838 (D. Minn. 2013), noted, “the Eighth Circuit has repeatedly recognized, for example, that a transfer to another city with the same salary and title does not constitute an actionable adverse employment action. See, e.g., Pettus v. Harvey, 494 Fed.Appx. 698, 699 (8th Cir.2012) ( per curiam ); Montandon, 116 F.3d at 359. More pertinent, “[m]inor changes in duties or working conditions, even unpalatable or unwelcome ones, which cause no materially significant disadvantage do not [suffice].” Clegg v. Ark. Dep’t of Corr., 496 F.3d 922, 926 (8th Cir.2007); accord, e.g., Chappell v. Bilco Co., 675 F.3d 1110, 1117 (8th Cir.2012) (noting that more than a change in working conditions is required); Buboltz v. Residential Advantages, Inc., 523 F.3d 864, 869 (8th Cir.2008) ( “[A]n alteration of job responsibilities … does not constitute an adverse action.”); Higgins v. Gonzales, 481 F.3d 578, 585 (8th Cir.2007) (“[A] job reassignment involving no corresponding reduction in salary, benefits, or prestige is insufficient.”).”

[13] Id.

[14] See, e.g., Henry v. Independent School District 625, 988 N.W. 2d 868 (Minn. 2023).

[15] 29 C.F.R. § 1630.2(m).

[16] 29 C.F.R. § 1630.2(n).

[17] 29 C.F.R. § 1630.2(n)(2)(i-iii).

[18] 29 C.F.R. § 1630.2(o)(3). (noting it may be necessary for the employer “to initiate an informal, interactive process with the individual with a disability in need of the accommodation.”)

[19] 29 C.F.R. § 1630.2(i)(1)(ii).

[20] 29 C.F.R. § 1630.2(j)(5)(i).

[21] 29 C.F.R. § 1630.2(j)(5)(v).

[22] 29 C.F.R. § 1630.2(j)(3)(iii).

[23] The increase in accommodation requests impacted employers financially, but most requested reasonable accommodations under the ADAAA have little or no cost. See, Regulations To Implement the Equal Employment Provisions of the Americans With Disabilities Act, as Amended, 76 Fed. Reg. 16977, 16992 (March 25, 2011), citing studies projecting little to no costs for accommodations.  Further, according to a 2020 survey from the Job Accommodation Network (JAN) of the U.S. Department of Labor’s Office of Disability Employment Policy, “employers reported low costs for most accommodations. Some key facts from the survey: (a) of 1,029 employers who submitted cost information related to the accommodations they had provided, 56% said that accommodations for employees cost absolutely nothing; (b) only 4% of respondents said that accommodations resulted in an ongoing, annual cost to the organization; (c) of accommodations that required a one-time cost, the median expenditure was $500; and (d) 75% of employers who made changes reported that the accommodations were “very effective” or “extremely effective.” https://www.boia.org/blog/how-much-do-reasonable-accommodations-cost-not-much#:~:text=Some%20key%20facts%20from%20the,annual%20cost%20to%20the%20organization; see also, https://askjan.org/topics/costs.cfm?csSearch=2546498_1.  In the 2020 survey, employers who made accommodations reported numerous direct benefits as a result of the improvements. Accommodations improved employee retention and productivity, limited training expenditures, and increased company morale. Id.

[24] Ryan v. Columbus Regional Healthcare System, Inc., 2012 WL 1230234 at 8 (E.D. N.C., April 12, 2012) (quoting Brunko v. Mercury Hosp., 260 F.3d 939, 942 (8^th Cir. 2001)).

[25] ADAAA § 3(3)(A); 29 C.F.R. § 1630.2(l)(1); Davis v. NYC Dept. of Education, 2012 WL 139255 (E.D.N.Y. Jan. 18, 2012) (declining to dismiss an employee’s claim even though the impairment appeared to be transitory, because it was not apparent from the complaint that the impairment was also minor). The ADAAA defines “transitory” (as an impairment with an actual or expected duration of up to six months), but not “minor,” and the “transitory and minor” analysis only applies to the regarded as prong of the disability analysis.

[26] ADA Amendments Act of 2008, Pub. L. No. 110–325, § 6(a)(1)(h), 122 Stat 3553, 3558 (2008). The requirement that employers provide reasonable accommodation to the known limitations of a qualified individual with a disability, unless doing so would create an undue hardship, remains the same. See Sanchez v. Dep’t of Energy, 2011 WL 5902484, at *163 n.5 (M.S.P.B. Nov. 22, 2011) (noting that because the ADAAA did not change the statutory provision regarding reasonable accommodation, the ADAAA and its implementing regulations did not affect the outcome of the case)

[27] 29. C.F.R. § 1630.2(l).

[28] Gaus v. Norfolk Southern Rv. Co., 2011 WL 4527359 (W.D. Pa. Sept. 28, 2011) (denying summary judgment on the post-ADAAA “regarded as” claims, while granting summary judgment on the pre-ADAAA “regarded as” claims).

[29] Id. at *19 (stating that the employer’s reliance on the “substantially limited” language relating to post-ADAAA conduct “misses the mark.”)

[30] Lizotte v. Dacotah Bank, 677 F. Supp. 2d 1155 (D.N.D. 2010) (abrogated, in unrelated part, by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011)).

[31] Id. at 1160.

[32] Id.

[33] Id.

[34] Holihan v. Lucky Stores, Inc., 87 F.3d 362 (9th Cir. 1996).

[35] Id. at 364.

[36] Id.

[37] Id. at 365.

[38] Id.

[39] Id. at 366.

[40] Id. The court also cited some doctor’s notes that the employer and the employer’s insurance company received diagnosing the employee with various mental illnesses, including depression. Arguably such notice would today be considered enough to establish the employee as disabled under the any of the three definitions in the ADA.

[41] Kagawa v. First Hawaiian Bank/Bancwest Corp., 819 F. Supp. 2d 1125 (D. Haw. 2011).

[42] Id. at 1126.

[43] Id.

[44] Id.

[45] Id. at 1126-1127.

[46] Id. at 1129.

[47] Id. at 1127.

[48] Id. quoting Compl. ¶ 87.

[49] Id.

[50] Id. (Finding there were three grounds on which the plaintiff had plead a sufficient claim under the “regarded as” prong: “First, the Complaint alleges that the Bank ordered Kagawa to go to counseling or else be fired. See Compl. ¶¶ 61, 65. Second, Kagawa alleges that her manager’s report, given to the counselor (assumed to be the Bank’s agent for purposes of this motion), stated that Kagawa “hears a voice” and would do whatever the voice told her to do. Compl. ¶ 87. Kagawa alleges that this report was misleading because it failed to explain that Kagawa believed she was a mystic and could hear God’s voice. Id. Instead, Kagawa not unreasonably inferred, the report’s implication was that Kagawa heard “just any voice” like “some insane person.” Id. Third, the counselor instructed Kagawa to see a doctor, which the court understands to mean a psychiatrist or psychologist. Compl. ¶¶ 88, 90. These facts, taken together, plausibly allege that the Bank regarded Kagawa as having some kind of mental illness.”)

[51] EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103 (9th Cir. 2010); see also Department of Fair Employment and Housing v. Lucent Technologies, Inc. 642 F.3d 728, 744 (9^th Cir. 2011); Leicht v. Hawaiian Airlines, Inc., 15 Fed. Appx. 552, 554 (9^th Cir. 2001) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105,114 (9th Cir.2000),  vac’d on other grounds,  535 U.S. 391 (2002)) (under ADA, if employee cannot make request for accommodation for disability and company knows of existence of employee’s disability, employer must assist in initiating interactive process).

[52] McElwee v. County of Orange, 700 F.3d 635 (2nd Cir. 2012)(Post-ADAAA); Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000) (stating “the interactive process is a mandatory rather than a permissive obligation on the part of employers under the ADA and … is triggered by an employee or an employee’s representative giving notice of the employee’s disability and the desire for accommodation”),vac’d on other grounds, 535 U.S. 391 (2002); see also Taylor v. Phoenixville School Dist., 184 F.3d 296, 315 (3rd Cir. 1999) (holding that the employer’s duty to engage in the interactive process is triggered “[o]nce the employer knows of the disability and the employee’s desire for accommodations”); C.L. v. State Dep’t of Human Servs., No. A12–1742, 2013 WL 4404452 (Minn. Ct. App. Aug. 19, 2013), review denied, (Minn. Nov. 12, 2013).

[53] Taylor, 184 F.3d at 313 (stating that courts are primarily concerned that “the employee or a representative for the employee provides the employer with enough information that, under the circumstances, the employer can be fairly said to know of the disability and the desire for accommodation.”); Stephenson v. United Airlines, Inc., 9 Fed.Appx 760 (9^th Cir. 2001) (under the ADA, employer is obligated to engage in an interactive process with employees when an employee requests an accommodation for a disability or if the employer recognizes that an accommodation is necessary; employee’s request need not take any particular form or invoke magic words to be effective.); EEOC v Sears, 417 F.3d 789 (7th Cir. 2005) (noting, “it is sufficient to notify the employer that the employee may have a disability that requires accommodation.”); Barnett, 228 F.3d at 1112 (stating, “[a]n employee requesting a reasonable accommodation should inform the employer of the need for adjustment due to a medical condition …”).

[54] EEOC Enforcement Guidance on the Americans with Disabilities Act and Psychiatric Disabilities, EEOC Notice Number 915.002, March 25, 1997 (“Enforcement Guidance”) Question 17, Example A.; Kobus v. College of St. Scholastica, 608 F.3d 1034 (8th Cir. 2010) (Summary judgment for defendant affirmed where record shows no specific evidence that employee’s limitations were apparent at work, employee repeatedly declined to reveal his diagnosis to his employer, and he expressed doubt about his ability to medically confirm his diagnosis), Wolski v. City of Erie, 773 F. Supp. 2d 577 (W.D. Penn. 2011); Weaving v. City of Hillsboro, 2012 WL 526425 (D. Or. Feb. 16, 2012).

[55] EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, EEOC Notice Number 915.002, rev. Oct. 17, 2002 (“Enforcement Guidance – Undue Hardship”), Question 1, Example A. The Enforcement Guidance – Undue Hardship has still been referenced by courts in Post-ADAAA cases.  See McElwee v. County of Orange, 700 F.3d 635, 644 (2nd Cir. 2012) (citations omitted).

[56] Enforcement Guidance – Undue Hardship, Question 1, Example B.

[57] The “interactive process” is the process through which an employer consults the employee to determine the nature and extent of the limitations on an employee’s ability to work as a result of the medical condition at issue and whether a reasonable accommodation may be facilitated without undue hardship to the employer.  (Of course, an employer also would not be required to accommodate an employee in a way that would result in a direct threat of harm to the employee or others.)  The failure by the employer to engage in the interactive process with the employee at this critical stage amounts to a per se violation of the ADA, which may result in compensatory damages (e.g., wage loss and mental anguish) and/or punitive damages. See Gregor v. Polar Semiconductor, Inc., 2013 WL 588743 at *4 (citing Fjellestad v. Pizza Hut of Am., Inc., 188 F.3d 944, 950 (8th Cir. 1999) for the proposition that “the failure of an employer to engage in an interactive process to determine whether accommodations are available is prima facie evidence that the employer may be acting in bad faith”); Palacios v. Continental Airlines, 2013 WL 499866 at *2 (S.D. Tex. Feb. 11, 2013) (citing Griffen v. United Parcel Serv., Inc., 661 F.3d 216, 224 (5th Cir. 2011)) (commenting that when an employer’s unwillingness to engage in a good faith interactive process leads to a failure to reasonably accommodate an employee, the employer violates the ADA); Bowman v. St. Luke’s Quakertown Hospital, 2012 WL 6527402 at * 4 (E.D. Pa., Dec. 13, 2012) (noting the phrase “‘(f)ailure to accommodate’ includes both refusing to provide an employee with a proposed accommodation and failing to engage in an interactive process after the employee requested an accommodation”) (citation omitted). The interactive process and the issues related thereto are addressed, in detail, in Section II of this article.

[58] Enforcement Guidance, Question 17, Example C.

[59] Enforcement Guidance – Undue Hardship, Question 1, Example D.

[60] Hughes v. Southern New Hampshire Services, Inc., 2012 WL 5904949 at *4 (D. New Hamp. Nov. 26, 2012) (Pre- and Post-ADAAA) (citing Jones v. Nationwide Life Insurance Company, 696 F.3d 78 (1st Cir. 2012)); see also Layeux v. Dedicated Logistics Servs., LLC, No. A21-0573, 2021 WL 6109805 (Minn. Ct. App. Dec. 27, 2021), review denied, (Minn. Mar. 15, 2022).

[61] Kobus v. College of St. Scholastica, Inc., 608 F.3d 1034, 1035 (8th Cir. 2010); see also Boston v. TrialCard, Inc., 75 F.4th 861 (8th Cir. 2023).

[62] Kobus at 1036.

[63] Id.

[64] Id. at 1039.

[65] Enforcement Guidance – Undue Hardship, Question 1, Example C; see also, Department of Fair Employment and Housing v. Lucent Technologies, Inc. 642 F.3d 728, 744 (9^th Cir. 2011) (California Fair Employment and Housing Act (FEHA) affords disabled employee a right to a reasonable accommodation by employer, regardless of whether employee specifically sought accommodation); Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1089 (9^th Cir. 2002) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105,112 (9th Cir. 2000),  vac’d on other grounds, 535 U.S. 391 (2002)) (once job applicant requests accommodation for disability, or employer recognizes that applicant needs an accommodation but cannot request it because of a disability, employer must engage in an interactive process with applicant to determine the appropriate reasonable accommodation)(citation omitted); Leicht v. Hawaiian Airlines, Inc., 15 Fed. Appx. 552, 554 (9^th Cir. 2001) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105,114 (9th Cir.2000),  vac’d on other grounds, 535 U.S. 391 (2002)) (under ADA, if employee cannot make request for accommodation for disability and company knows of existence of employee’s disability, employer must assist in initiating interactive process).

[66] Bultemeyer v. Fort Wayne Comm. Schs., 100 F.3d 1281, 1285-86 (7th Cir.1996) (noting “if it appears that the employee may need an accommodation but doesn’t know how to ask for it, the employer should do what it can to help.”) (abrogated, in unrelated part, by Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2011)).

[67] Id. at 1286.

[68] Id.

[69] EEOC v. Sears, 417 F. 3d 789, 804 (7^th Cir. 2005); See also, Department of Fair Employment and Housing v. Lucent Technologies, Inc. 642 F.3d 728, 744 (9^th Cir. 2011) (California Fair Employment and Housing Act (FEHA) affords disabled employee a right to a reasonable accommodation by employer, regardless of whether employee specifically sought accommodation); Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1089 (9^th Cir. 2002) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105,112 (9th Cir. 2000),  rev’d on other grounds, 535 U.S. 391 (2002)) (once job applicant requests accommodation for disability, or employer recognizes that applicant needs an accommodation but cannot request it because of a disability, employer must engage in an interactive process with applicant to determine the appropriate reasonable accommodation)(citation omitted); Leicht v. Hawaiian Airlines, Inc., 15 Fed. Appx. 552, 554 (9^th Cir. 2001) (citing Barnett v. U.S. Air, Inc., 228 F.3d 1105,114 (9th Cir.2000),  rev’d on other grounds,  535 U.S. 391 (2002)) (under ADA, if employee cannot make request for accommodation for disability and company knows of existence of employee’s disability, employer must assist in initiating interactive process).

[70] Enforcement Guidance, Question 17, Example B; Rowe v. City & County of San Francisco, 186 F.Supp. 2d 1047 (finding that the employer was on notice of the employee’s medical condition, which triggered the employer’s duty to engage in interactive process, at a minimum, when the employer received a note from the employee’s third-party doctor”) (citations omitted); Hoan v. Wells Fargo Bank, NA, 724 F.Supp. 2d 1094 (D. Or.. June 29, 2010) (finding a doctor’s note triggered notice on the employer, though the employee was responsible for the breakdown in the interactive process).

[71] Ferguson v. Wal-Mart Stores, Inc., 114 F.Supp.2d 1057, 1068 (E.D. Wash. 2000).

[72] Humphrey v. Mem’l Hospitals Ass’n, 239 F.3d 1128, 1137-38 (9th Cir. 2001) (pre-ADAAA case); see also Brunckhorst v. City of Oak Park Heights, 914 F.3d 1177 (8th Cir. Feb. 4, 2019), rehearing denied, (8th Cir. Mar. 21, 2019); see also Mobley v. St. Luke’s Health Sys., Inc., 53 F.4th 452 (8th Cir. Nov. 16, 2022).

[73] 29 C.F.R. § 1630, App. § 1630.9 at 359.

[74] See Emch v. Superior Air-Ground Ambulance Serv. of Michigan, Inc., 2012 WL 4090794, at *13 (E.D. Mich. Sept. 17, 2012) (“Even though the interactive process is not described in the [ADA’s] text, the interactive process is mandatory, and both parties have a duty to participate in good faith.” (quoting Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 871 (6th Cir. 2007))); and Eldredge v. City of St. Paul, 809 F. Supp. 2d 1011, 1034 (D. Minn. 2011) (“Although the employer’s failure to engage in the process does not amount to a per se finding of liability, such failure can be considered prima facie evidence of bad faith”); see also Jones, 696 F.3d at 91 (“[L]iability for failure to engage in an interactive process ‘depends on a finding that, had a good faith interactive process occurred, the parties could have found a reasonable accommodation that would enable the disabled person to perform the job’s essential functions.’” (quoting Kvorjak v. Maine, 259 F.3d 48, 52 (1st Cir. 2001))); see also Johnson v. Norton Cty. Hosp., 550 F. Supp. 3d 937 (D. Kan. 2021).

[75] EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010); Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114-15(9^th Cir. 2000) (en banc), vacated on other grounds, 535 U.S. 391 (2002); see also Mobley v. St. Luke’s Health Sys., Inc., 53 F.4th 452 (8th Cir. 2022); see also Ehlers v. Univ. of Minn., 34 F.4th 655 (8th Cir. 2022).

[76] Humphrey, 239 F.3d at 1136.

[77] 29 C.F.R. § 1630, App. § 1630.9 at 359.

[78] See 29 C.F.R. 1630, App. § 1630.9.

[79] Job Accommodation Network, Accommodation and Compliance Series: Employees with Mental Health Impairments, http://askjan.org/media/Psychiatric.html (last visited Apr. 30, 2024).

[80] UPS Supply Chain Solutions, 620 F.3d at 1110-11 (citing Interpretive Guidance on Title I of the Americans with Disabilities Act, 56 Fed. Reg. 35,726-01, 35,749 (July 26, 1991)).

[81] Barnett, 228 F.3d 1105, 1115 (9^th Cir. 2001) (en banc), vacated on other grounds, 535 U.S. 391 (2002).

[82] UPS Supply Chain Solutions, 620 F.3d at 1111.

[83] See, e.g., Humphrey, 239 F.3d at 1138 (employee’s “attempt to perform her job functions by means of a less drastic accommodation does not forfeit her right to a more substantial one upon the failure of the initial effort”); UPS Supply Chain Solutions, 620 F.3d at 1112 (an employer’s awareness that an initial accommodation is failing may be enough to continue the employer’s duty to accommodate, even if the employee does not explicitly request another accommodation); Wiederhold v. Sears, Roebuck & Co., 2012 WL 3643847, at *14-15 (D. Or. Aug. 23, 2012) (case arising under the ADAAA) (plaintiff raised question of fact about whether Sears had complied with its “continuing duty” to accommodate the plaintiff, who suffered from bone spurs, bursitis, and tendonitis, when better communication between the parties may have prevented plaintiff’s resignation).

[84] Frisino v. Seattle Sch. Dist. No. 1, 249 P.3d 1044, 1051 (Wash. App. 2011), review denied, 259 P.3d 1109 (Wash. 2011) (pre-ADAAA case arising under the Washington Law Against Discrimination, RCW 49.60) (holding the clean up of mold was not objective standard to address employee’s multiple sensitivities to irritants); see also McBee v. Team Indus., Inc., 925 N.W.2d 222, fn. 4 (Minn. 2019) (noting that an employer who fails to effectively communicate with an employee seeking accommodation “does so at its own peril;” and further noting,  “As a practical matter, thorough communication may be the only way to determine whether the employee could be reasonably accommodated —and for the employer to avoid liability”); see also Keller v. Monumental Sales, Inc., No. A23-0938, 2024 WL 1154022 (Minn. Ct. App. Mar. 18, 2024).

[85] McBee v. Team Indus., Inc., 925 N.W. 2d 222 (Minn. 2019); see also, Minn. Stat. §363A.08, subd. 6(b)(5).

[86] Dentice v. Farmers Ins. Exch., 2012 WL 2504046, at *18 (E.D. Wis. June 28, 2012) (quoting Ekstrand v. Sch. Dist. of Somerset, 583 F.3d 972, 976 (7th Cir. 2009)).

[87] 2012 WL 4959444, at *10 (S.D. Ohio Oct. 17, 2012).

[88] The author believes it is an open question, post-COVID-19, whether physical presence in the office is an essential function of many jobs.

[89] 2013 WL 143453, at *4-6 (D. Colo. Jan. 14, 2013).

[90] See Dentice, 2012 WL 2504046, at *19 (holding a reasonable jury could find that the employee was not responsible for communication breakdown when employee had provided information about the specific voice activated software requested, doctors’ opinions, and other information regarding his carpal tunnel and tendonitis).

[91] See Diaz v. City of Philadelphia, 2012 WL 1657866, at *11 (E.D. Pa. May 10, 2012) (the interactive process “requires nothing more than that ‘employers make a good-faith effort to seek accommodations.’” (quoting Hohider v. United Parcel Serv., Inc., 574 F.3d 169, 187 (3d Cir. 2009)); Eldredge v. City of St. Paul, 809 F. Supp. 2d 1011, 1034 (D. Minn. 2011) (to demonstrate that an employer failed to participate in the interactive process, the employee must prove both that the employer did not make a good faith effort to assist the employee in seeking accommodation and that the employee could have been reasonably accommodated but for the employer’s lack of good faith).

[92] Lucke  v. Multnomah County, 365 Fed. Appx. 793, 794 (9^th Cir. Feb. 12, 2010) (unpublished opinion).

[93] Minn. Stat. §363A.08, subd. 6(b)(5).

[94] Emch v. Superior Air-Ground Ambulance Serv. of Michigan, Inc., 2012 WL 4090794, at *14 (E.D. Mich. Sept. 17, 2012) (private ambulance service entitled to summary judgment based upon evidence that, while denying EMT’s initial request of regular, frequent meal breaks due to undue hardship, it proposed numerous reasonable alternatives and repeatedly met with the employee to seek a solution.  It was the employee who caused the interactive process to break down by refusing all alternative proposals, often for arbitrary reasons)(citing Jakubowski v. Christ Hosp., Inc., 627 F.3d 195, 203 (6th Cir. 2010), cert. denied, 131 S. Ct. 3071 (2011)).

[95] Mills v. Temple Univ., 869 F. Supp. 2d 609, 624 (E.D. Pa. 2012) (holding summary judgment improper because employer cannot establish that it acted in good faith in offering a secretary whose back condition limited her ability to lift extended unpaid leave in lieu of her requested accommodation, which would have required only modest change in a minor aspect of her job) (citing Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 317 (3d Cir. 1999)).

[96] Emch, 2012 WL 4090794, at *14 (citing Jakubowski, 627 F.3d at 203).

[97] Minn. Stat. §363A.08, subd. 6(b)(5).

[98] Conlon v. City & County of Denver, Colo., 2013 WL 143453, at *4 (D. Colo. Jan. 14, 2013) (abrogated, in unrelated part, by Lincoln v. BNSF Ry. Co., 900 F.3d 1166 (10th Cir. 2018) (finding that employee’s claim that employer failed to engage in the interactive process in good faith fails as a matter of law because the employer invited the employee to request accommodation and engaged in the interactive process once the employee had provided medical verification to support his request to work part-time) (citing EEOC v. Sears Roebuck & Co., 417 F.3d 789, 805 (7th Cir. 2005)).

[99] Fleck v. Wilmac Corp., 2012 WL 1033472, at *9 (E.D. Pa. Mar. 27, 2012).

[100] Emch, 2012 WL 4090794, at *16.

[101] Linebarger v. Honda of Am. Mfg., Inc., 870 F. Supp. 2d 513, 521-22 (S.D. Ohio 2012) (court concludes that failure to accommodate claim brought by assembly-line worker whose hypertension medication caused him to urinate frequently fails as a matter of law where employer placed the employee on medical leave while at the same time proposing a more frequent break schedule and other options to address employee’s needs.  The employee was found responsible for the breakdown in the interactive process because he did not give the facially reasonable accommodation proposal a chance).

[102] Unangst v. Dual Temp Co., Inc., 2012 WL 931130, at *8 (E.D. Pa. Mar. 19, 2012).

[103] Teague v. Nw. Mem’l Hosp., 836 F. Supp. 2d 727, 730 (N.D. Ill. 2011), aff’d, No. 11–3630, 2012 WL 3608619 (7th Cir. Aug. 23, 2012).

[104] Rodriguez v. Atria Sr. Living Group, Inc., 2012 WL 3457718, at *6 (S.D.N.Y. Aug. 13, 2012).

[105] Linder v. Potter, 2009 WL 2595552 (E.D. Wash. Aug. 18, 2009) (court implies that delay in commencing the interactive process is potentially more unreasonable than delays that might occur after the employer formally engaged in the interactive process and denies summary judgment because jury could conclude that five-month delay in engaging in the interactive process was unreasonable).

[106] Goonan v. Fed. Reserve Bank of New York, 2013 WL 69196, at *8-9 (S.D.N.Y. Jan. 7, 2013) (“[D]enial of an accommodation on the ground that a non-accommodated, disabled employee is experiencing performance inadequacies turns the rationale for the ADA’s rule of reasonable accommodation on its head”).

[107] Molina v. DSI Renal, Inc., 840 F. Supp. 2d 984, 1003-04 (W.D. Tex. 2012) (court finds issue of fact exists as to whether employer dialysis clinic acted in good faith in attempting to identify a reasonable accommodation where it required CMA suffering from back pain to take involuntary FMLA rather than considering accommodation for her lifting restrictions, which it had accommodated in the past).  See also EEOC v. Roadrunner Redi-Mix Inc., CIV No. 1:11-00873 JCH/WPL (D.N.M. 2011) (employee immediately sent home on unpaid leave and eventually terminated after requesting accommodation); McGregor v. Nat’l R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999) (pre-ADAAA case) (“100% healed” policies are per se violations of the ADA because they substitute a fully-healed determination for the required case-by-case assessment of whether a qualified individual can perform his or her job with or without accommodation). It is well settled that forced leave, pending recovery from a health issue, is a bad idea for employers as violative of the ADAAA and state discrimination laws.  See, generally, https://www.eeoc.gov/laws/guidance/employer-provided-leave-and-americans-disabilities-act# (noting, “An employer will violate the ADA if it requires an employee with a disability to have no medical restrictions — that is, be “100%” healed or recovered — if the employee can perform her job with or without reasonable accommodation unless the employer can show providing the needed accommodations would cause an undue hardship.”) Id., at edn. 7 – See consent decree in EEOC v. Brookdale Senior Living Communities, Inc. (D. Colo. No. 14-cv-02643-KMT) (resolved August 17, 2015). EEOC alleged that the company refused an employee’s request to return to work after leave for fibromyalgia because she was unable to return to work without restrictions or accommodations. See also consent decree in EEOC v. Americold Logistics (W.D. Ky. No. 4:12-cv-47-JHM) (resolved June 14, 2013). In this case, the EEOC alleged that the employer refused to explore or to provide reasonable accommodation that would allow an employee with chronic lumbar back pain to return to work and instead fired the employee because she was not 100% healed. See also Kauffman v. Petersen Health Care VII, LLC, 769 F.3d 958 (7th Cir. 2014) (permitting an employer to require that an employee be 100% healed would negate the ADA’s requirement that an employer provide reasonable accommodation if it enables an employee to perform his job).

[108] Eldredge, 809 F. Supp. 2d at 1035 (plaintiff requested the use of a magnifying glass when needed to read small print in his firefighting job; defendants contended that plaintiff sought to use a magnifying glass in order to see everything around him).

[109] Dentice v. Farmers Ins. Exch., 2012 WL 2504046, at *18 (E.D. Wis. June 28, 2012) (citing EEOC v. Sears Roebuck & Co., 417 F.3d at 797 and Ekstrand, 583 F.3d at 976).

[110] Id.

[111] Aulisio v. Baystate Health Sys., Inc., 2012 WL 3947738, at *7 (D. Mass. Sept. 7, 2012).

[112] Bar-Meir v. Univ. of Minnesota, 2012 WL 2402849, at *6 (D. Minn. June 26, 2012); Hoppe v. Lewis Univ., 692 F.3d 833, 840 (7th Cir. 2012), reh’g denied (Sept. 24, 2012).

[113] Cleveland v. Mueller Cooper Tube Co., Inc., 2012 WL 1192125, at *7 (N.D. Miss. Apr. 10, 2012).

[114] Chin-McKenzie v. Continuum Health Partners, 876 F. Supp. 2d 270, 292-93 (S.D.N.Y. 2012) (hospital employee with severe allergies and food sensitivities failed to identify any accommodation that would have permitted her to perform the essential functions of her job that was not provided by the employer; to the contrary employer “vigorously attempted” to identify means of accommodating her condition).

[115] See Chapa v. Floresville Indep. Sch. Dist., 2012 WL 3062781, at *12 (W.D. Tex. July 26, 2012) (employer asserted that it allowed plaintiff short breaks to rest her knee while working at janitorial job, but plaintiff had requested specific accommodation of light duty, with no stairs or lifting over 20 pounds, per her doctor’s recommendations) and Goonan v. Fed. Reserve Bank of New York, 2013 WL 69196, at *5-9 (S.D.N.Y. Jan. 7, 2013) (citing EEOC v. UPS Supply Chain Solutions, 620 F.3d 1103, 1110 (9th Cir. 2010) (Federal Reserve denied telecommuting accommodation to survivor of 2001 World Trade Center attacks who had to walk past Ground Zero to get to new office, triggering flashbacks, extreme anxiety, and depression. Holding that a reasonable juror could find that the employer, not the employee, had cut off the interactive process, the court stated, “Ineffective modifications are . . . not accommodations,” and “In light of the Fed’s warning that it would not contemplate alternative accommodations, or would consider them only after improved performance, Plaintiff’s decision to forego an inadequate parade of advanced light fixtures, soothing soundtracks, windowless desks, and micro-managed assignments hardly constituted bad faith”).  But see Linebarger v. Honda of Am. Mfg., Inc., 870 F. Supp. 2d 513, 522 (S.D. Ohio 2012) (where alternative accommodation is facially reasonable, plaintiff’s failure to “give the . . . proposal a chance” is “fatal to his failure to accommodate claim”).

[116] Chapa, 2012 WL 3062781, at *12 (citing Cutrera v. Bd. of Sup’rs of Louisiana State Univ., 429 F.3d 108, 113 (5th Cir. 2005)).

[117] Barlow v. Walgreen Co., 2012 WL 868807, at *7 (M.D. Fla. Mar. 14, 2012).

[118] Pearce-Mato v. Shinseki, 2012 WL 2116533, at *11-12 (W.D. Pa. June 11, 2012).

[119] 42 U.S.C. § 12113 (a-b).

[120] See for example EEOC v. Wal-Mart Stores, Inc., 477 F.3d 561, 571 (8th Cir. 2007).

[121] The “direct threat” concept traces its origins to a Rehabilitation Act case called Sch. Bd. of Nassau County, Florida v. Arline, 480 U.S. 273 (1987) in which the plaintiff teacher had a history of recurring tuberculosis and was discharged because of the defendant school board’s fear that she would transmit her disease to children in the classroom. In considering her Rehabilitation Act claim, the Supreme Court interpreted the Act not to require the hiring of a person who posed “a significant risk of communicating an infectious disease to others,” but held that the Act did protect individuals who did not pose an objectively demonstrable risk from “deprivations based on prejudice, stereotypes, or unfounded fear.” The ADA codified and broadened the “direct threat” concept.

[122] 42 U.S.C. § 12113(a).

[123] 42 U.S.C. § 12113(b).

[124] 29 C.F.R. § 1630.2(r).

[125] Id.

[126]Id. at 1-4.

[127] 2012 BL 341202, *9 (W.D. Ark. Dec. 28, 2012).

[128] Id. at *4.

[129] Id. at *6.

[130]Id. at *1.

[131] Id. at *8-9.

[132] Id. at *9.

[133] Id.

[134] Id.

[135] Id.

[136] 2012 BL 78533, 25 AD Cases 1727, (W.D. Wash., 2012).

[137] Id.

[138] Id. at *5-6.

[139] Id.

[140] Selected key portions of the EEOC Guidance for ADA-compliant discussions about employee health conditions, including some direction regarding communications with health care providers, are attached hereto as Appendix A.

[141] As noted previously, supra, whether there is a “direct threat” must be determined based on “an individualized assessment of the individual’s present ability to safely perform the essential functions of the job” including “a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence.” 29 C.F.R. § 1630.2(r).  Discovering the most current medical knowledge would likely involve information gathered from a healthcare provider assessing or treating the employee.

[142] 29 U.S.C. §§ 2601–2654.

[143] 29 C.F.R. §§ 825.305, 825.312.

[144] 29 C.F.R. § 825.305(c).

[145] 29 C.F.R. § 825.307(a).

[146] Practice Note, HIPAA Privacy Rule.

[147] 29 C.F.R. § 825.307(b)-(c).

[148] 29 C.F.R. § 825.308(a)-(b).

[149] 29 C.F.R. § 825.312(h).

[150] See, e.g., Minn. Stat. §363A.20, subd. 8.

[151] Minn. Stat 176.155.

[152] Minn. Stat. §144.291 to 144.298.

[153] 45 CFR 164.512 (l).

[154] https://www.hhs.gov/hipaa/for-professionals/privacy/index.html.

[155] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_39_

[156] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_40_

[157] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_41_

[158] See Appendix A; selected portions of the EEOC’s Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees under the ADA.

[159] Obviously, employers who disparately discipline employees with disabilities, as distinct from non-disabled employees, ALSO expose themselves to discrimination claims.

[160] EEOC Enforcement Guidance: The Americans With Disabilities Act: Applying Performance and Conduct Standards to Employees With Disabilities.

[161] Id. at Sec. 3 (B) Question 9, citing 42 U.S.C. § 12112(b)(6); 29 C.F.R. §§ 1630.10, .15(c).

[162] Id.

[163] Id.

[164] Id. at Question 10.

[165] Id.

[166] See 29 C.F.R. §1630.12; 29 U.S.C. §2615; Minn. Stat. §363A.15; and Minn. Stat. § 176.82.

[167] See, e.g., Minn. Stat. §363A.15.

[168] The pendulum has swung materially in favor of employees in the last two decades in assessing what is enough to be adverse employment action under the federal law.  As Minnesota practitioners, these authors would be remiss if we did not note that Minnesota law on this subject is even broader than federal law.  Under the Minnesota Human Rights Act, an act of reprisal includes, but is not limited to, “any form of intimidation, retaliation, or harassment.”  Minn. Stat. § 363A.15  Arguably, an employee need not show that they suffered an “adverse employment action” in a Minnesota state claim as opposed to a federal claim.

[169]  See, e.g., Dietrich v. Canadian Pacific Ltd., 536 N.W.2d 319 (Minn. 1995); Schweiss v. Chrysler Motors Corp., 987 F.2d 548, 549 (8th Cir. 1993); Rath v. Selection Research. Inc., 978 F.2d 1087, 1089‑90 (8th Cir. 1992);Womack v. Munson, 619 F.2d 1292, 1296 (8th Cir. 1980).

[170] Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53 (2006).

[171] 570 U.S. 338; 133 S. Ct. 2517 (2013).

[172] Id. at 2534.

[173] Id. at 2533.

[174] Kevin Russell, Details: University of Texas Southwestern Medical Center v. Nassar, SCOTUSblog (Jun. 24, 2013, 11:28 AM), http://www.scotusblog.com/2013/06/details-university-of-texas-southwestern-medical-center-v-nassar/

[175] For example, in 2013, shortly after the Nassar decision, a district court in the Eighth Circuit held that showing actual knowledge and temporal proximity can be enough to survive summary judgment. In Sutherland v. Shinkseki,  2013 BL 310505, *3 (D. Minn. Nov. 06, 2013); the plaintiff, a Veteran’s Administration nurse, missed several days of work in the first few weeks of her employment. The defendant hospital alleged that the plaintiff had failed to complete required orientation sessions and amassed too many unexcused absences during an initial probationary period; the nurse claimed that the absences were caused by an epileptic attack. After being told she would be fired, the nurse contacted the hospital’s Office of Resolution Management, triggering the hospital’s Equal Employment Opportunity mechanism. The ORM in turn informed the hospital that the plaintiff had contacted them; eight days later the hospital sent the plaintiff a termination letter. In a decision issued a year later, the ORM concluded that the plaintiff’s termination was not discriminatory.  The nurse sued for disability discrimination, failure to accommodate (both under the Rehabilitation Act) and Title VII retaliation. The district court for the District of Minnesota rejected the defendant’s motion for summary judgment on all three claims. As to the retaliation claim, the court held that “at minimum” the plaintiff’s complaint to ORM was a protected action, and that its proximity in time to her termination (eight days) was sufficient to prove a prima face case of retaliation under Nassar.

[176] See for example Engstrom v. Frandsen Financial Corp. Inc., 2013 WL 7204918, *12 (discussing Nassar and concluding that Minnesota’s traditional “substantial factor” standard remains unchanged for purposes of proving causation under state reprisal statute).

[177]In addition, in Liles v. C.S. McCrossan, Inc., 851 F.3d 810 (8th Cir. 2017) the Eighth Circuit noted that the Minnesota courts have not specifically determined whether the Nassar but-for Title VII retaliation standard applies to MHRA reprisal. Id. at 819. Nonetheless, assuming (without deciding) it’s application, the court applied a lower standard of proof of causation than but-for.  Relying on the Minnesota Supreme Court’s decision in Dietrich, the Eighth Circuit determined that a plaintiff asserting an MHRA reprisal case must show causation with “evidence of circumstances that justify an inference of retaliatory motive, such as a showing that the employer has actual or imputed knowledge of the protected activity and the adverse employment action follows closely in time.” Id. at 819 (citing Dietrich v. Canadian Pac. Ltd., 536 N.W.2d 319, 327 (Minn. 1995)).  Similarly, in Musolf v. J.C. Penny Co., Inc., 773 F.3d 916 (8th Cir. 2014), the Eighth Circuit noted that the Supreme Court’s Nassar “but-for” Title VII retaliation standard did not apply to MHRA reprisal cases. Id. at 919.  The Musolf applied the lower standard of causation employed by Minnesota courts (that causation can be shown “if an illegitimate reason more likely than not motivated the discharge decision”). Despite applying the lower causation standards in Liles and Musolf, the Eighth Circuit still found against the employee plaintiffs, claiming insufficient proof of causation.

[178] Cornwell v. Microsoft Corporation, 430 P.3d 229, 234 (Wash. 2018) (citing Currier v. Northland Servs., Inc., 182 Wn.App.733, 742, 332 P.3d 1006 (2014)).

[179] Id.; see also, Ellorin v. Applied Finishing, Inc., 2014 BL 47422, 15 (W.D. Wash. Feb. 07, 2014) (noting that Title VII and WLAD retaliation claims are identical except for the causation element, and affirming the standard announced in Allison, 821 P.2d 34, 42 (Wash. 1991)

[180] Heisler v. Metropolitan Council, 339 F.3d 622 (8th Cir. 2003); See also Munir v. Thomas, 2008 BL 306851, fn. 4 (E.D. Cal. 2008) (noting that bringing a retaliation claim does not require proving the underlying claim of discrimination)..

[181] Kissinger-Campbell v. Harrell, No. 8:08-CV-568-T-27TBM, 2009 WL 103274, at *6–7 (M.D. Fla. Jan. 14, 2009); Darveau v. Detecon, Inc., 515 F.3d 334, 337 (4th Cir. 2008) (FLSA); Kreinik v. Showbran Photo, Inc., No. 02CIV.1172(RMB)(DF), 2003 WL 22339268, at *1 (S.D.N.Y. Oct. 14, 2003) (FLSA); State v. Wallin, 1997 WL 53016 (Minn. Ct. App. 1997) (filing a claim against a former employee is reprisal under the MHRA).

[182] Michael Faillace, Disability Law Deskbook: The Americans with Disabilities Act in the Workplace 10 (2009); See also Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790 (Minn. May 22, 2013).

[183] See for example Spiegel v. Schulmann, 604 F.3d 72, 79 (2d Cir. 2010).

[184] Minn. Stat. §363A.15.

[185] Washburn v. Gymboree Retail Stores, Inc., 2012 BL 226667, *14 (W.D. Wash. Sept. 04, 2012); citing Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 361 (2001).

[186] The EEOC encourages employers to utilize the Job Accommodation Network (JAN) as a resource for accommodations.  See, https://www.eeoc.gov/publications/ada-your-responsibilities-employer#:~:text=Under%20the%20ADA%20%2C%20workers%20with,by%20you%20for%20your%20employees.  (even providing the phone number in the Guidance – 1-800-526-7234).

 

[187]https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_43_

 

[188]https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_44_

[189]https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada#N_7_

[190]https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada#N_8_

[191]https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada#N_9_; this Guidance pre-dates ADAAA; post-ADAAA, it is much better to focus on the limitations and not the disabling condition.

[192]https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada#N_10_

[193]https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada#N_11_

[194] https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada#N_12_

[195] https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada#N_13_

[196] https://www.eeoc.gov/laws/guidance/enforcement-guidance-workers-compensation-and-ada#N_14_

[197] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_49_

[198] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_50_ HOWEVER, IN THIS AUTHOR’S VIEW, IT IS UNWISE FOR AN EMPLOYER TO ASK ABOUT THE DISABILITY AND MUCH SMARTER TO ASK ABOUT THE IMPEDIMENTS TO PERFORMING THE JOB AND THE EMPLOYEE’S LIMITATIONS, WHICH MUST BE ACCOMMODATED.

[199] AGAIN, IN THIS AUTHOR’S VIEW IT IS UNWISE FOR AN EMPLOYER TO ASK ABOUT THE EMPLOYEE’S DISABILITY AND MUCH SMARTER TO ASK ABOUT THE IMPEDIMENTS TO PERFORMING THE JOB AND THE EMPLOYEE’S LIMITATIONS, WHICH MUST BE ACCOMMODATED. THE FOCUS SHOULD BE SQUARELY ON ASSESSING HOW TO ACCOMMODATE.

[200] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_53_

[201] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_55_

[202] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_56_

[203] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_57_

[204] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_58_

[205] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_59_

[206] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_60_

[207] Id. At N_53_

[208] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_64_

[209] https://www.eeoc.gov/laws/guidance/enforcement-guidance-disability-related-inquiries-and-medical-examinations-employees#N_65_

[210] IN THIS AUTHOR’S VIEW, THIS IS A DATED EXAMPLE, FRAUGHT WITH PERIL.  THE BEST COURSE WOULD BE TO ASK FOR A FITNESS FOR DUTY FOR ALL EMPLOYEES RETURNING FROM LEAVE, WITH OR WITHOUT DISABILITY.