The epileptic seizures that caused Gophers football coach Jerry Kill to miss games and take a leave of absence raise a number of concerns.
Some urge that his tenure come to an end in the third year of his seven-year contract, while others advocate for more understanding of the difficulties faced by people with epilepsy. President Eric Kaler and athletics director Norwood Teague gave enthusiastic support to retain Kill while he tries to minimize his disruptive seizures.
But while the emotions of Kill’s situation have attention, little heed has been paid to the legal posture between the University of Minnesota and Kill. Kill is now on indefinite leave — this provides an occasion to examine relevant laws and legal doctrines.
The chief legal concern arises under the Americans with Disabilities Act, a federal law that prohibits unreasonable discrimination against the disabled in the workplace.
The first consideration under the ADA is whether Kill is covered. The University falls within the scope of the measure, which applies to most employers with 15 or more employees. A parallel state version of the law exists in the Minnesota Human Rights Act, which covers nearly all employers, regardless of size.
The next question is whether Kill is protected by it. He is covered because the law, along with its Minnesota counterpart, applies to individuals who have a disability that impairs a “major” life activity. Kill’s seizures, which thousands at TCF Bank Stadium witnessed, would constitute a substantial setback in normal life activities.
Although he is eligible for protection, Kill is not assured that he can keep his job under the ADA. The law requires that an employee be able to perform the “essential functions” of the position. Being on the sidelines and in the locker room during games is a quintessential requirement of a head coach of a college football team. Kill’s inability to coach an entire game, on at least five occasions during the past three years, encompassing about 15 percent of the 33 games so far, places into question his functionality.
But the ADA does require an employer to provide a “reasonable accommodation” to an employee, if requested. Generally, the law requires an employee and employer to engage in an “interactive dialogue” to try to come up with ways that an employee can remain in the position with some tinkering of job requirements, as long as the modifications do not undermine the employee’s obligation to perform essential tasks. Whether Kill has requested any accommodations and whether they can be reasonably established is unknown.
Lightening Kill’s workload by having assistant coaching staff take over some tasks is among the accommodations that could be reasonable. However, under the law, any accommodation cannot create “undue hardship.” Not having a coach available during games may be the type of burden that the law does not require of an employer.
Another federal law, the Family and Medical Leave Act, is also relevant. Under the FMLA, an employer with 50 or more employees, like the University, must give a requesting employee an unpaid leave of absence for at least 12 weeks per year for a “serious” medical condition. The University has apparently gone beyond the measure, which is permissible, allowing Kill an indefinite leave with pay. After the leave ends, the University would have to allow him to return if he is capable of coming back, although Teague could reassign him to a different position if he is unable to carry out his coaching responsibilities.
There are some other legal considerations applicable to Kill’s situation as well. It is unclear how much the University knew, or should have known, about Kill’s history of epileptic seizures when it hired Kill. Kill maintains that he informed the University about his condition during the hiring process. It remains murky how much vetting the University did, or should have done, about his condition when he was brought aboard nearly three years ago. If he did not fully disclose his condition, the University might have an out for the remaining years of his contract by asserting rÃ©sumÃ© fraud. This allows an employer to terminate an employee, even under contract, if material misrepresentations were on file about his status in the hiring process.
As the situation evolves, these considerations are likely to be more significant in deciding how to proceed with the relationship between the University and Kill.