Authored By: Dennis Merley Attorney View Biography

Employees with medical conditions often can perform the tasks required of their jobs but are limited in the number of hours they can work or the schedules that they can meet. These restrictions pose particular problems for employers seeking to find ways to provide accommodations. The following case demonstrates what can happen when an employee can perform her job duties but not necessarily during the hours when she is needed.

No rest for the weary
Marty Meyer-Gad was one of seven full or part time chaplains employed by St. Cloud Hospital to provide 24-hour access to chaplaincy services. The chaplains worked during the day and then each took one shift per week of on call service during the evening and night hours to respond to emergencies. The chaplains could serve the on-call hours if they lived within 15 minutes of the hospital; otherwise, they were required to stay on site in sleeping quarters provided by the hospital.

All of the chaplains, including Meyer-Gad, were informed at the time of hire that participating in the rotation for taking night call shifts was a requirement of the job, even though it was not specifically stated in the job description.

Beginning in 2003, Meyer-Gad began to have trouble sleeping and concentrating on tasks. She was eventually diagnosed with narcolepsy, a condition that causes the sufferer to fall asleep suddenly, often without notice and at inappropriate times. She and the hospital agreed that she should be scheduled for on call duties on nights before she had days off, a schedule that seemed to work well for both parties since it allowed Meyer-Gad to make up for sleep that she lost during the on-call assignment.

Due to short-staffing, Meyer-Gad’s supervisor asked her to cover two additional on-call shifts in July, 2004, in addition to her regular shifts. Mayer-Gad then submitted a note from her doctor stating in no uncertain terms that she must not work past 9:00 p.m. She was taken off the call schedule temporarily while the hospital obtained additional information and reviewed its options. Despite asking about different alternatives, such as allowing Meyer-Gad to sleep in quiet quarters in the hospital until called, her doctor insisted Meyer-Gad required normal sleep patterns and that the ban on working past 9:00 p.m. was absolute. Consequently, the hospital concluded that since Meyer-Gad could not fulfill the critical job function of working nights, and since they could not accommodate her permanently, termination was the only reasonable course. Meyer-Gad then sued in Federal Court under the Americans with Disabilities Act and the Minnesota Human Rights Act (“MHRA”), and the hospital brought a motion to dismiss.

Putting the claims to bed
Meyer-Gad argued that her narcolepsy qualified as a disability since it substantially limited her in the major life activities of sleeping, thinking, and consciousness. The judge felt differently, however, noting that her own sworn testimony indicated that she managed her condition very ably during her employment. In fact, she worked for over a year at the hospital without incident after her narcolepsy was diagnosed. While she may have fallen asleep at times, there was no evidence that her work actually suffered as a result of the condition. In addition, her outside activities were not restricted – in fact, she maintained an active schedule of physical exercise and volunteer activities. Interestingly, the judge also observed that in Meyer-Gad’s new job after leaving the hospital, she worked between 33-40 hours a week, usually between the hours of noon and midnight. Finding that Meyer-Gad was not “severely” or “permanently” affected, he concluded that a reasonable jury could not find that Meyer-Gad is or was “disabled” for purposes of the ADA or the MHRA.

The judge also ruled that even if Meyer-Gad was disabled, she could not perform the essential functions of her job, even with reasonable accommodation. The ability to be on call was an essential function of the hospital’s full-time chaplain position. Obviously, the need for a chaplain’s service might arise at any time of the day or night and the hospital needed employees who could respond quickly to those needs. While the job description did not identify this as a requirement, Meyer-Gad admitted that she knew when she took the job that she would have to pull her weight in this area.

Meyer-Gad suggested several accommodations that the hospital could have considered, such as a leave of absence, reduced or split shifts or simply requiring current or new employees to assume her on-call shifts. The judge concluded, however, that none of these alternatives was reasonable. For example, the leave was not viable since the doctor’s note did not address whether Meyer-Gad would ever be able to work past 9:00 p.m. The judge observed that an employer is not obligated under the law to “wait indefinitely for [the employee’s] recovery.” As for the remaining suggestions, the court noted that the law does not require an employer to reallocate an essential function as an accommodation. In short, even if the hospital needed to consider an accommodation, there was nothing that met the reasonableness standard.

Dreaming up one last argument
Meyer-Gad reminded the judge that the hospital had managed to accommodate her for a long time by scheduling her call shift before her day off. As such, she asserted that the decision not to continue doing so was discriminatory. Meyer-Gad had to acknowledge, however, that the rules of the game changed when she herself brought in the doctor’s note that established, for the first time, that she could not work the night time hours. As a result, the previous history of accommodation was irrelevant.

In a last-ditch attempt to win the case, Meyer-Gad claimed that regardless of the hospital’s decision, their failure to engage in the interactive process violated the law. The “interactive process” is the terminology used by the Equal Employment Opportunity Commission (EEOC) and some courts to articulate how the employer must consult with the employee and their health care provider in considering possible accommodation. The judge rejected this argument as well, observing that the Hospital more than fulfilled any such duty. They knew of Meyer-Gad’s impairment for almost the entire period of her employment and accommodated her until July, 2004. When the new restriction came in, the hospital immediately sought more information before making the accommodation decision. While deeming this effort “not a terribly robust interactive process”, the judge concluded that it nevertheless passed muster under the ADA. Perhaps more importantly, he observed that the ADA does not create separate liability for failure to meet the interactive process requirement. Therefore, if there is no actual disability, there simply can be no unlawful failure to engage in the interactive process. Marty Meyer-Gad v Centra Care Health System, D/B/A St. Cloud Hospital, No. 05-1086 U.S. District Court, District of Minnesota.

What have we learned?
In many ways, it is easier to accommodate restrictions in job duties than it is to modify the employee’s schedule or work hours. Since so many jobs must be performed at a time when co-workers are present or when customers need to be served, precise schedules or hours can rise to the level of essential job functions. Nevertheless, it is still critical that employers give thoughtful consideration to all requests for accommodation in this regard, making sure to seek out the employee’s perspective as well as that of other knowledgeable persons.