October 2018 – Vol. 20, No. 10 The Employer E-Letter:  Labor and Employment Law News from the Duluth, Minnesota law firm of Hanft Fride, A Professional Association.

October 2018 – Vol. 20, No. 10

The Employer E-Letter:  Labor and Employment Law News
from the Duluth, Minnesota law firm of
Hanft Fride, A Professional Association.

Co-Editors, Scott A. Witty, saw@hanftlaw.com and Richard R. Burns, rrb@hanftlaw.com, or 218.722.4766. Please feel free to forward this e-mail or share it with others.  If there are other topics of interest to you or any other suggestions concerning this newsletter, please let us know.


This Month’s Topics: 

  • timely request required to maintain failure to accommodate claim
  • Tip Of The Month



The U.S. Equal Employment Opportunity Commission (EEOC) has indicated for fiscal year 2018 sexual harassment claims are up by 12% from the prior fiscal year.  However, actual lawsuits brought by the EEOC, which were 41 in number, represent a 50% jump from the number of sexual harassment cases filed in the prior fiscal year.  With pride, the acting EEOC chair, Victoria Lipnic, said agency staff has “stepped up to the heightened demand of the #metoo movement to make clear that workplace harassment is not only unlawful, it is simply not acceptable.”  Promotion of harassment-free workplaces is a significant goal of the EEOC, and many employers are reviewing their harassment policies to make them stronger and clearer with better reporting avenues.


Scope of Employee’s Rights under the Americans with Disabilities Act During a Lengthy Health-Related Absence

The Seventh Circuit Court of Appeals recently held in Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), cert. denied 138 S. Ct. 1441 (2018), that an employee’s request for two months leave to attend to health problems was not a “reasonable accommodation” that an employer must provide. The employee in Severson sought an additional two months, on top of the three months he took under the Family Medical Leave Act, in order to recover from surgery. The employee claimed that a two month period of leave would allow him to return to work, and thus it was a reasonable accommodation that must be borne by the employer under the Americans with Disabilities Act. The 7th Circuit panel rejected the employee’s argument on the grounds that such a lengthy absence was not reasonable. More importantly, the Court determined that such a lengthy health-related absence results in an employee no longer being deemed a “qualified individual” covered by the ADA’s protections. This ruling suggests that employers can, depending on the circumstances, deny prolonged health-related leave above and beyond the three months provided by the FMLA. However, at the same time, the ruling does indicate that employers could be required to approve shorter terms of leave as an accommodation. Therefore, employers still need to be careful when denying ADA requests for leave, but the longer the request the greater the likelihood that the request would be deemed to fall outside the ADA’s protections.


Willful Misconduct and Employee Rules

Procedures for calling in before the start of a workday can be enforced, and failure to follow them can result in not only termination, but disqualification for unemployment benefits.  An employee had a family medical emergency that resulted in her not being able to work.  As it was an emergency, it would have been covered by FMLA.  The next day the situation would still have been covered by FMLA to take care of the daughter, but the employee did not call in.  She was warned that, if she violated the no show/no call policy again, she would be terminated.  She failed to call in again as she overslept and was terminated.  As this was a specific company rule, even if the first two absences have been covered by FMLA, the failure to call in was deemed to be willful misconduct and disqualified her from unemployment benefits.  Rolbiecki v. Regions Hospital, Docket No. A17-1531, Minn. Ct. App. (2018).

NOTE:  We believe this same decision would apply for other important company rules, such as overtime abuse.


Timely Request Required to Maintain Failure to Accommodate Claim            

In a recent case brought under the Minnesota Human Rights Act, the United States District Court, District of Minnesota, concluded that an employee’s claim that his employer failed to accommodate his disability was dismissed because the employee’s request for accommodation was untimely.  In Tyner v. Qwest Corporation, the employee had diabetes, which caused him to experience sudden urges to urinate. No. 17-3147 (D. Minn. Oct. 6, 2018).  While driving his company vehicle to an apartment complex, the employee experienced such an urge, pulled into the apartment parking lot and urinated in a plastic bottle.  The apartment complex manager observed the employee’s conduct and informed the employee’s supervisor.  When confronted by his supervisor, the employee disclosed for the first time that he had diabetes, which caused the need for him to urinate in the parking lot.  The employee was terminated for violation of the company’s code of conduct, and he sued alleging Qwest failed to provide reasonable accommodations as required by the MHRA.  The Court dismissed the employee’s claim because the employee “did not inform his supervisor of his diabetes and urges to urinate until after the incident.”  The Court noted that “an employer is not required to excuse past workplace misconduct even if it is the result of an employee’s disability.”  This case serves as a good reminder that employers should listen carefully and document any notification from an employee about a potential disabling condition and requested accommodations.


TIP OF THE MONTH:  Providing employees notice of newly adopted or changes to existing workplace policies is important not only to ensure everybody knows the rights and rules in the workplace, but also to protect the company in employment-related litigation.  Providing such notice to employees by email is becoming more and more common, but employers that use this practice should require a response from each employee acknowledging receipt.  Though some may consider it “outdated,” the recommended method of providing notice of new or changed policies is to provide a printed version and require each employee to acknowledge receipt by signing the document.


Hanft Fride’s business and trial lawyers are located at 1000 U.S. Bank Place, in Duluth, Minnesota.  Visit our website at www.hanftlaw.com for general information on the firm and our attorneys. Our employment lawyers include Tom Torgerson, Rob Merritt and Scott Witty.  Richard Burns is now of Counsel.


The information provided in this E-letter is general in nature and should not be used as a substitute for professional services and advice.  The communication and receipt of this information is not intended to create an attorney-client relationship.  Readers should consult with their legal counsel before taking any action on matters covered in this E‑letter.


To subscribe or unsubscribe to Employer E-Letter, e-mail your request to lml@hanftlaw.com or call Scott Witty at 218.722.4766.


Copyright 2018 by Hanft Fride, P.A.  All rights reserved.  Hanft Fride, A Professional Association, 1000 U.S. Bank Place, 130 W. Superior Street, Duluth, MN 55802.  Phone 218.722.4766; Fax 218.529.2401.