By: Diane Reinsch

Under the Americans with Disabilities Act, covered employers are required to provide “reasonable accommodations” to qualified job applicants and employees with disabilities, to participate in the job application process, to perform the essential functions of their jobs, or to enjoy benefits and privileges of employment equal to those enjoyed by employees without disabilities. In order to make job-related decisions on the basis of whether an employee can perform essential job functions with our without a reasonable accommodation requires the employer to understand what are the essential functions of a job.  This is not as simple as it may seem.

A recent case from another jurisdiction ruled that driving might not be an essential function for a sales representative, because the primary purpose of the sales representative’s job was to meet with customers and give presentations to sell the product, not to drive, even though the sales representative needed to drive to the customer’s place of business to give the presentation.  The employee requested as a reasonable accommodation a driver.  The lower court granted summary judgment in favor of the employer, but the appellate court reversed stating there was a fact question for the jury on whether or not driving was an essential function of the job.  Employers do not have to excuse employees from performing the essential functions of a job as a reasonable accommodation.   In this case, the employer did not include in the job description that driving was an essential function of the job.  (See https://www.employmentandlaborinsider.com/americans-with-disabilities-act/is-driving-an-essential-function-of-the-job-for-your-road-warriors/ for further discussion of this case.)

While the ADA does not require employers to have job descriptions, employers can benefit from having well-written job descriptions that set out the “essential functions” for each employment position.  Whether a particular function is “essential” is a factual determination that the Equal Employment Opportunity Commission (the federal agency that enforces the ADA) says must be made on a case-by-case basis.  In determining whether a job function is essential, the EEOC looks at these factors:

• the employer’s assessment of which functions are essential, as demonstrated by job descriptions written before the employer posts or advertises for the position
• whether the position exists to perform that function (if the entire job consists of one function, such as data entry, then the function is essential)
• the experience of employees who actually hold that position
• the time spent performing the function
• the consequences of not performing the function
• whether other employees are available to perform the function, and
• the degree of expertise or skill required to perform the function.

(See https://www.eeoc.gov/facts/ada17.html)

The weight given to each factor is case specific.  For instance, a firefighter may spend little time fighting fires, but no one would argue that fighting fires is not an essential function. Similarly, a police officer may rarely fire his weapon, but no one would argue that having the ability to hold a gun and fire it is not an essential function of the job of a patrol officer.

The case discussed demonstrates how important it is to understand the essential functions of a job when determining a reasonable accommodation. Besides assisting an employer in the interactive process in this regard, a written job description also can help employers identify whether an applicant will be able to perform the essential functions required of a particular position.  While an employer may not ask a job applicant if he or she has a disability, an employer may ask whether the applicant is able to perform the “essential functions” of a position, such driving a car. If an applicant says he or she is unable to perform an essential job function because of a disability, the employer must consider whether it is possible to reasonably accommodate the disability.

The enumerated factors indicate, the EEOC also considers written job descriptions as evidence in determining whether an individual has been discriminated against because of their disability. That means clear, concise and complete job descriptions also can help protect employers from costly lawsuits.

Diane practices on our Litigation Team, defending health care professionals, hospitals, and employers. She also has a broad-based counseling practice to assist employers with the effective use of employee education, training, and employment policies. Learn more at https://l-wlaw.com/attorneys/diane-m-reinsch/.