We all know that the ADA requires employers to make reasonable accommodations to allow employees to perform the essential functions of their job. Can that ever mean that the employee is entitled to a driver?
Recently, the 4th Circuit Court of Appeals found that a question of fact existed whether a pharmaceutical company could discharge a long time, award winning, sales representative from her position because she developed a vision disorder that prevented her from driving.
The employee, Stephenson, had worked for Pfizer for about 30 years as one of their top salespeople before she became unable to drive. Although she could still make effective sales presentations to doctors, her job required her to makes her sales calls at the doctors’ offices. Before her vision problem took her off the road, she reported driving a substantial part of every day.
Believing that she could still do her sales work, Stephenson requested a driver to allow her to maintain her schedule of sales calls. This was not a case of a marginal employee looking for an easy way out, but Pfizer rejected that request and offered her other jobs in the company that did not require her to travel. She, in turn, rejected the offer of other jobs and Pfizer ultimately removed her from her sales position.
Stephenson filed suit for violation of her rights under the ADA on the basis that the company denied her request for reasonable accommodation of a driver. The employer took the position that driving was an essential function of her job as a sales person and hiring another person to do that part of the job was not reasonable.
The district court granted summary judgment in favor of Pfizer finding that the ADA does not require an employer to reassign, reallocate, or adjust essential functions. It held that assigning Stephenson a permanent driver was unreasonable as a matter of law. The court noted that an employer must accommodate a disabled employee only when an accommodation would enable the employee to perform all of the essential functions of her position. It agreed with Pfizer that driving was an essential function of the employee’s job and no accommodation existed that would allow her to perform that function. The court found that the only accommodation Stephenson could seek from Pfizer was reassignment to a different position. Because Stephenson had not identified any vacant positions she was willing to accept, she had failed, according to the opinion, to show that Pfizer had violated the ADA.
The employee appealed and the Court of Appeals overturned the district court’s decision, agreeing with the employee that a genuine question exists as to whether being able to drive to sales calls was an essential function of the job of pharmaceutical sales rep for Pfizer. If it is not an essential function, a driver may not be unreasonable.
Although Pfizer claims that driving is one of the essential functions because sales rep’s can’t make sales calls if they cannot drive to doctors’ offices in their sales territory, the court found the issue to be a lot less cut and dried. It found that the employee also made a compelling argument that making sales was the essential function and not how she got to the sales call. Here is the most important point for employers, the court also found persuasive the fact that her job description did not include driving as an essential function.
The ADA identifies two factors that indicate whether a particular function is essential to a position. First, the employer’s judgment of the essential functions must be considered. Second, if a written job description has been prepared ahead of advertising or interviewing candidates, it will be highly relevant in identifying essential functions.
The ADA regulations define essential functions as “the fundamental job duties of the employment position the individual with a disability holds or desires,” excluding “the marginal functions of the position.” 29 C.F.R. § 1630.2(n)(1). Second, the regulations identify seven factors that are “evidence of whether a particular function is essential”:
- the employer’s judgment as to which functions are essential;
- written job descriptions prepared before advertising or interviewing applicants for the job;
- the amount of time spent on the job performing the function;
- the consequences of not requiring the incumbent to perform the function;
- the job exists specifically to perform the function;
- the small size of the workforce requires all employees to be able to perform the function;
- the employee is hired for her expertise in performing the highly specialized function.
The case is headed back to the district court for further litigation. It serves as a good reminder to employers to review your job descriptions to ensure that all of the essential functions of the job are identified. While the job description is not beyond attack, it creates essentially a presumption which the employee must show to be incorrect. Thorough job descriptions will enable employers to better respond to requests for accommodations.
