CAI’s Advice and Resolution team member Pat Rountree shares valuable information regarding job descriptions and compliance with the ADA
The terminology essential functions of the job has been around since the Americans with Disabilities Act (ADA) became law in 1993. However, the significance of making sure that you have current job descriptions for each position that lists the essential duties, physical, and mental requirements greatly increased with the recent amendments to the ADA. Also, technology advances have resulted in a faster pace of job change over the last several years.
Employment law attorneys continue to stress that job descriptions that identify the essential functions of the job are the first line of defense when employers are trying to defend undue hardship decisions on inability to make accommodation, and terminations for inability of employees to do the job.
At the most recent CAI/Ogletree Employment and Labor Law Update, Attorney Gretchen Ewalt recommended that employers use the employee performance review time to go over the job description with the employee annually and determine if changes need to be made to accurately reflect the current job responsibilities.
Another recommendation in light of recent case law is to document in the job description if the job requires the employee to be present at the worksite and to document the reasons why. It may sound ridiculous—of course attendance at work is required. However, with requests for accommodation to work from home, it is important to document when actual presence at work is required as in the EEOC vs. Ford Motor Company. The employee, a resale buyer, requested to work from home as an accommodation, but the employee’s lack of availability for impromptu meetings on important issues was an undue hardship for the employer. The court sided with the employer and noted in their decision, in most jobs, especially those involving teamwork and a high level of interaction, the employer will require regular and predictable on-site attendance from all employees. To read the full court decision, see http://www.ca6.uscourts.gov/opinions.pdf/15a0066p-06.pdf.
Obviously with the advance of technology, working from home may be a reasonable accommodation for some jobs. However, for those jobs that require person-to-person contact on the job, it is important to document.
How long has it been since you actually reviewed job descriptions with incumbents to determine that they are still valid?
Considerations in determining essential functions include:
- The importance of the function to the overall job
- The number of employees available to perform it
- The time spent on the function
- The degree of skill required
Other kinds of evidence that EEOC will consider include:
- The actual work experience of present or past employees in the job
- The consequences of not requiring that an employee perform a function
- The terms of a collective bargaining agreement.
For additional guidance on this topic, please reach out to CAI’s Advice and Resolution team at 919-878-9222 or 336-668-7746.