Friday, March 15, 2019

What Functions of a Job Are Really Essential?

Complying with the ADA can be complicated. While most employers know that they must provide a reasonable accommodation to a disabled employee to allow that worker to perform the essential functions of their positions, our clients sometimes ask us for assistance in determining the actual essential functions of a job. Are they just what the employer labels as essential functions in a job description? And, as so often is the case, what if the job description is not completely up to date and does not identify duties as essential that the employer believes are so?

Earlier this week, the 7th Circuit Court of Appeals reiterated the test that courts in this jurisdiction should use to determine what job duties are essential functions. In the case of Papenfuss v. Butitta Bros. Auto, Inc, the plaintiff had worked for the auto repair company for a few years when he began suffering from seizures. His doctor restricted him from driving for an indefinite period of time. Upon hire, plaintiff was given two job descriptions, one for a service advisor which did not require driving and one for a technician, which did require driving. The parties both acknowledged that all employees occasionally drove, regardless of their job title. The company determined that plaintiff’s complete prohibition against driving made it impossible to reasonably accommodate his seizure disorder. Plaintiff sued the company, claiming failure to accommodate under the ADA because, among other things, driving was not an essential function of his job. The question became whether driving was an essential function of plaintiff’s job.

 The court noted that a plaintiff must plead and prove in an ADA claim that “(1) [he] is a person with a disability as defined by the ADA; (2) the defendant knew about [his] disability; and (3) the plaintiff is otherwise qualified to perform the essential functions of the job sought, with or without reasonable accommodation.” A plaintiff who clears this first hurdle must then show that his or her employer failed to provide a reasonable accommodation.

In order to determine whether an employer failed to provide a reasonable accommodation, the court must first (1) define what the “essential functions” of plaintiff’s job were and then (2) determine whether plaintiff could have performed those “essential functions” with (or without) a reasonable accommodation.

While employers might think that it is in their discretion to determine what functions are essential to a job, the court here cautioned that “courts should not “rubber-stamp an employer’s assertions about which functions are essential,” because doing so would allow employers to undermine the ADA by creating new essential functions as “post hoc rationalizations for unlawful discrimination.”

Rather, the court reiterated the various factors used to determine whether a particular duty is an “essential function,” including (a) the employee’s job description, (b) the employer’s opinion, (c) the amount of time spent performing the function, (d) the consequences for not requiring the individual to perform the duty (the hardship), and (e) the actual practices in the employer’s workplace.

Whether a function is essential to a job is answered case by case, but employers should be aware in general that identifying a job function as essential will not automatically make it so. Rather, employers should keep in mind the tests used by courts to determine whether a function is essential both when drafting job descriptions and when engaging in the ADA interactive process.