• [I]njury arising out of and in the course of employment and includes personal injury caused by occupational disease; but does not cover an employee except while engaged in, on, or about the premises where the employee's services require the employee's presence as a part of that service at the time of the injury and during the hours of that service. . . .

• [A] disease arising out of and in the course of employment peculiar to the occupation in which the employee is engaged and due to causes in excess of the hazards ordinary of employment and shall include undulant fever. Ordinary diseases of life to which the general public is equally exposed outside of employment are not compensable, except where the disease follows as an incident of an occupational disease, or where the exposure peculiar to the occupation makes the disease an occupational disease hazard. A disease arises out of the employment only if there be a direct causal connection between the conditions under which the work is performed and occasioned by the nature of the employment. An employer is not liable for compensation for any occupational disease which cannot be traced to the employment as a direct and proximate cause and is not recognized as a hazard characteristic of and peculiar to the trade, occupation, process, or employment or which results from a hazard to which the worker would have been equally exposed outside of the employment.

• Cause
  
• Aggravate
  
• Accelerate

• Cause: An employee falls off a ladder at work, fracturing his ankle – the work activities substantially contributed to cause the fractured ankle, which is compensable as a work injury.
  
  
• Aggravate: An employee has had a previous meniscectomy to the right knee, due to an old sports injury. When working as a nursing assistant, the employee turns to lift a patient, causing pain in the right knee. The work activities substantially contributed to aggravate the employee's pre-existing right knee condition. Whether the injury is permanent or temporary typically becomes the issue (see discussion below).
  
  
• Accelerate: An employee has multi-level degenerative disc disease, with a bulging disc at L4-5, which is documented by x-rays before she began work for employer. During the 10 years of working as an assembly line worker for employer, employee performed repeated twisting and turning movements on the line. Over time, employee's back became more symptomatic and an MRI reveals a herniation at L4-5. Although the changes and beginning of the herniation are documented prior to employment, it is likely the employee will be able to establish an acceleration or aggravation injury.

• at least 17% permanent partial disability (PPD) rating of the whole body;
  
• at least 15% PPD rating of the whole body and was at least 50 years old at the time of injury; or
  
• at least 13% PPD rating of the whole body, was at least 55 years old at the time of injury, and has not completed grade 12 or obtained a GED certificate.

• there has been no significant lasting improvement in the employee's condition, and significant recovery or lasting improvement is unlikely, even if there is ongoing treatment;
  
• all diagnostic evaluations and treatment options that may reasonably be expected to improve or stabilize the employee's condition have been exhausted, or declined by the employee;
  
• any further treatment is primarily for the purpose of maintaining the employee's current condition or is considered palliative in nature; and
  
• any further treatment is primarily for the purpose of temporarily or intermittently relieving symptoms.

• the employee's condition is significantly improving or likely to significantly improve, with or without additional treatment;
  
• there are diagnostic evaluations that could be performed that have a reasonable probability of changing or adding to the treatment plan leading to significant improvement; or
  
• there are treatment options that have not been applied that may reasonably be expected to significantly improve the employee's condition.

• Pre-10/1/95 Injuries: An employer who fails to offer suitable employment within 90 days after service of the MMI report on the employee may be required to pay permanent partial disability at a substantially higher rate.
  
  
• Post-10/1/95 Injuries: The two-tiered permanent partial disability system has been eliminated. It has been "replaced" with a statutory provision (Minn. Stat. § 176.82, subd. 2) which exposes an employer to civil action and penalties for failing to offer suitable employment if the employer has a position which could reasonably be made available to the employee. The employer may be liable for one year's wages, up to a maximum of $15,000.
  
  
• Light Duty Work: The employer can offer an injured employee work within his or her restrictions during the healing period. If the employee unreasonably rejects an offer of such work, workers' compensation benefits may be suspended.
  
  However, an employee is not required to accept light-duty work if disabled due to a condition which would qualify the employee for unpaid leave under the FMLA. If the employee qualifies for FMLA leave, the employer will not be able to terminate the employee for absenteeism or take any other actions prohibited by the FMLA until the employee's entitlement to FMLA leave has been exhausted.

1. have been employed by the employer for at least 12 months on the date on which the FMLA leave is to commence;
   
   
2. have worked with the employer for at least 1,250 hours during the previous 12-month period; and
   
   
3. be employed at a work site where 50 or more employees are employed. However, an employee will be covered even if there are less than 50 employees at a particular work site if the same employer has 50 or more employees within a 75-mile radius of the work site of the requesting employee.

1. Any period of incapacity or treatment in connection with, or consequent to, inpatient care (i.e., an overnight stay) in a hospital, hospice, or residential medical care facility;
   
   
2. Any period of incapacity requiring absence from work, school, or other regular daily activities, of more than three calendar days, that also involves continuing treatment by (or under the supervision of) a health care provider; or
   
   
3. Continuing treatment by (or under the supervision of) a health care provider for a chronic or long-term health condition that is incurable or so serious that, if not treated, would likely result in a period of incapacity of more than three calendar days, or for prenatal care.

1. The employee is treated two or more times for the injury or illness by a health care provider;
   
   
2. The employee is treated for the injury or illness two or more times by a provider of health care services under orders of, or on referral by, a health care provider, or is treated for the injury or illness by a health care provider on at least one occasion which results in a regiment of continuing treatment under the supervision of the health care provider to resolve the health condition; or
   
   
3. The employee is under the continuing supervision of, but not necessarily being actively treated by, a health care provider due to a serious long-term or chronic condition or disability which cannot be cured.

1. That the employer is treating the leave as FMLA leave and that the leave taken will be credited against the employee's FMLA leave entitlement for the 12-month period.
   
   
2. That the employee is, or is not, required to utilize paid leave for that portion of the FMLA leave to which it would be applicable and the amount of paid leave available before the employee will revert to unpaid leave under the FMLA.
   
   
3. Whether the employee is deemed to be a "key employee", such that the employer will be unable to keep the employee's position available until the FMLA leave is concluded, and that there are potential consequences with respect to reinstatement and maintenance of health benefits, if the employer should determine that substantial and grievous economic injury to the employer's operations will result if the employee is reinstated from FMLA leave. (If it is not possible to do this at the time leave is requested, or at the time that the leave begins, such notice must be given as soon as the determination has been made and must be served on the employee either in person or by certified mail. The notice must also provide the employee a reasonable time within which to return to work if the employee wishes to do so.)

• Limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee because of his or her disability.
  
  
• Participating in a contractual or other arrangement or relationship that has the effect of subjecting an employee with a disability to the discrimination prohibited by the ADA. This includes a relationship with an employment referral agency, labor union, or organization providing fringe benefits to an employee or the employer, or any organization providing training or apprenticeship programs.
  
  
• Creating and utilizing standards, criteria or methods of administration that have the effect of discrimination on the basis of disability or that perpetuate the discrimination of others who are subject to common administrative control.
  
  
• Failing to create reasonable accommodations to physically or mentally limited employees to enable them to perform job duties unless such accommodation would impose an undue hardship on the operation of the business of the employer.
  
  
• Denying employment opportunities to a job applicant who is an otherwise qualified individual with a disability, if such denial is based on the need of the employer to make reasonable accommodation to the physical or mental impairments of the employee or applicant.
  
  
• Using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability or a class of individuals with disabilities unless the standards, test or other selection criteria, as used by the employer, is shown to be job-related for the position in question and is consistent with business necessity.
  
  
• Failing to select and administer tests concerning employment in the most effective manner to ensure that a job applicant or employee who has a disability that impairs sensory, manual, or speaking skills, such tests results accurately reflect the skills, aptitude, or whatever other factor of such applicant or employee that such test purports to measure, rather than reflecting the impaired sensory, manual, or speaking skills of such employee or applicant. 42 USC § 12112(b)(1-7).

1. a physical or mental impairment that substantially limits one or more of the major life activities of such individual;
   
2. a record of such an impairment; or
   
3. being regarded as having such an impairment. 42 USC § 12102(2).

• homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, other sexual impairment disorders, compulsive gambling, kleptomania, pyromania, the current illegal use of drugs, and psychoactive substance use disorder resulting from current illegal use of drugs. 42 USC §§ 12210, 12211.

1. unable to perform a major life activity that the average person in the general population can perform;
   
   
2. significantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity. 29 C.F.R. § 1630.2(j).

• significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities. The inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working. 29 C.F.R. § 1630.2(j).

1. Modifications or adjustments to a job application process that enables a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
   
   
2. Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enables a qualified individual with a disability to perform the essential functions of that position; or
   
   
3. Modifications or adjustments that enable a covered entity's employees with a disability to enjoy equal benefits and privileges of employment as are enjoyed by other similarly situated employees without disabilities. 29 C.F.R. § 1630.2(o).

1. Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and
   
   
2. Job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modifications of equipment or devices; appropriate adjustment or modifications of examinations, training materials, or policies; the provision of qualified readers or interpreters; and other similar accommodations for individuals with disabilities. 29 C.F.R. § 1630.2(o).

1. the reason the job exists is to perform this specific function;
   
2. because of the limited number of employees available among whom the performance of that job function can be distributed; and/or
   
3. the function is highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular function.

1. the employer's judgment;
   
2. written job descriptions prepared before advertising or interviewing applicants for a job;
   
3. the amount of time spent on the job performing that function;
   
4. the consequences of not requiring the incumbent to perform the function;
   
5. the terms of a collective bargaining agreement;
   
6. the work experience of past incumbents in the job; and/or
   
7. the current work experience of incumbents in similar jobs.

1. Analyze the job involved and identify essential functions of the job.
   
   
2. Consult with qualified employee to determine the precise job-related physical or mental limitations imposed by the employee's disability. Identify the barriers to job performance and assess how these barriers could be overcome with an accommodation.
   
   
   • A medical examination, if not previously conducted, may be appropriate to determine if the employee has a disability covered by the ADA and is entitled to an accommodation, and, if so, to assist in identifying a reasonable accommodation.
     
     
   • Review definition of disability to confirm that employee has a disability as defined by ADA before proceeding further with the reasonable accommodation process. Any doubts or questions at this stage should be discussed with medical professionals and/or legal counsel.
   
   
   
3. Consult with qualified employee to identify potential accommodations and assess how effective each accommodation would be in enabling the employee to perform essential job functions. (If a collective bargaining agreement applies, invite the union to the consultation.) If accommodations cannot be identified in this consultation, seek technical assistance from the EEOC, State or local rehabilitation agencies, or disability constituent organizations. If there is a question about whether a product or technology exists to assist an employee to perform his or her job, outside resources should be consulted. Denial of a request for reasonable accommodation without calling such organizations may be used as evidence of an employer's lack of good faith in the accommodation process.
   
   
4. After identifying accommodations, if more than one, consider employee's preferred accommodation, and select and implement accommodation that is most appropriate for both the employee and the employer. If more than one accommodation would be effective, employee's preference should be given first consideration. However, the employer is free to choose among effective accommodations and may choose one that is less expensive or easier to provide.

1. The nature and net cost of the accommodation needed under this part, taking into consideration the availability of tax credits and deductions, and/or outside funding;
   
2. The overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation, the number of persons employed at such facility, and the effect on expenses and resources;
   
3. The overall financial resources of the covered entity, the overall size of the business of the covered entity with respect to the number of its employees, and the number, type and location of its facilities;
   
4. The type and operation or operations of the covered entity, including the composition, structure and functions of the workforce of such entity, and the geographic separateness and administrative or fiscal relationship of the facility or facilities in question to the covered entity; and
   
5. The impact of the accommodation upon the operation of the facility, including the impact on the ability of other employees to perform their duties and the impact on the facility's ability to conduct business. 29 C.F.R. § 1630.2(p).

1. Mental Impairment
   
   A mental impairment is any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities. 29 CFR § 1630.2(h)(2) . Emotional or mental illness includes major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders. EEOC Enforcement Guidelines on the Americans with Disabilities Act and Psychiatric Disabilities ("EEOC Guidelines"), p. 5.
   
   
2. "That Substantially Limits a Major Life Activity"
   
   The same definitions apply to mental disabilities as to others, but a mental disability may affect a person's life activities different than another disability would. For example, a mental disability is more likely to affect a person's ability to:
   
   • Learn
     
   • Think
     
   • Concentrate
     
   • Speak
     
   • Work
     
   • Interact with others
     
   • Care for oneself
     
   • Sleep
     
   • Perform manual tasks.
   
   
   EEOC Guidelines, p. 7. Similar to other conditions, mental conditions that are temporary or shortlived, with no permanent effects on the employee, will not qualify as disabilities under the ADA.
   
   Medications: If an employee needs medications to control his or her behavior, and would be considered "substantially limited" while off medications, but controlled while on medications, the employee may qualify for ADA protection. The EEOC may find a mental disability if the disability substantially limits a major life activity when not controlled by medications.
   
   
3. "Interaction With Others" as a Major Life Activity
   
   The ADA identifies "interacting with others" as a potential major life activity which may be substantially limited by a mental disability. This is not necessarily in reference to the employee who is not well-liked by others, or has difficulty getting along in the workplace. An employee must show that his or her mental impairment results in a significant restriction as compared with the normal population with interacting with others, which may be correlated to failing to communicate when necessary, or a consistently hostile attitude. EEOC Guidelines, p. 12.
   
   A Minnesota case addressed this issue when the employee claimed that his mental disabilities of depression and schizoid personality disorder made it difficult to interact with others. The employee was fired for violating the employer's policies, after various confrontations with co-employees. The federal court denied the employee's claims, because the employee failed to establish that he was substantially limited in his ability to interact with others. Breiland v. Advance Circuits, Ins., D. Minn. 9/16/97.

1. Modified Work Schedule
   
   You may have to give an employee time off from work or modify the employee's work schedule to provide a reasonable accommodation. EEOC Guidelines, p. 25. Allowing the employee to use accrued leave or providing additional unpaid leave to employee may be considered a reasonable accommodation so long as the accommodation does not impose an undue hardship on the employer. EEOC Guidelines, p. 26. Additionally, the employer may be required to modify or reduce the employee's work schedule as an accommodation.
   
   
2. Physical Modifications to the Workplace
   
   If an individual with a mental disability has difficulties concentrating or is easily distracted, for example, you may be required to provide partitions or sound-proofing as a reasonable accommodation. Alternatively, you may need to reduce or eliminate the sound or distraction causing difficulty for the employee. If an employee's disability relates to concentration difficulties, perhaps providing a tape recorder to assist in retention of information may be the accommodation necessary. EEOC Guidelines, p. 27.
   
   
3. Modifications of Policies or Procedures
   
   The EEOC Guidelines give as an example of modifying company due to mental disability, allowing an employee to drink beverages at his or her work station, or providing more than 2 - 15 minute breaks throughout the day, to allow an employee on medications related to his or her mental disability to drink extra liquids to combat side effects of the medications. EEOC Guidelines, p. 27.
   
   
4. Provision of a Job Coach
   
   A reasonable accommodation may be the provision of a job coach to assist training a person with a disability, or allowing a job coach from a social service agency to accompany the employee to the job. EEOC Guidelines, p. 29.

1. all entering employees are subjected to such an examination regardless of disability;
   
2. information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record except that:
   
   • supervisors and managers can be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;
     
   • first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and
     
   • government officials investigating compliance with this chapter may access these medical records.

• In addition to completing the required report of work ability . . . a health care provider must participate cooperatively in the planning of an injured employee's return to work by communicating with the employee, employer, insurer, rehabilitation providers, and the commissioner in accordance with this part. A health care provider must release the employee to return to work, with restrictions if necessary, at the earliest appropriate time.

• . . . the health care provider must respond within ten calendar days of receipt of a request by the employee, employer, or insurer regarding whether the physical requirements of a proposed job are within the employee's medical restrictions or whether the health care provider requires further information. The health care provider may respond in writing, in person, or by telephone. The health care provider may require that the proposed job be described in writing. The provider may also agree to review a videotape of the job.

• Advise the medical provider the appropriate workers' compensation contact is for the employer.
  
• Inform the medical provider about the availability of light duty or transitional work.
  
  
  
  

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