Title I of the Americans with Disabilities Act of 1990 (“ADA”) makes it unlawful for an employer to discriminate against a qualified applicant or employee with a disability. The ADA applies to private employers with 15 or more employees and to state and local government employers.
A “disability” is defined in the ADA as any physical or mental impairment that substantially limits a major live activity, having a record of such an impairment, or being regarded as having such an impairment.
An applicant with a disability, like all other applicants, must be able to meet the employer’s requirements for the job, such as education, training, employment experience, skills, or licenses. In addition, an applicant with a disability must be able to perform the “essential functions” of the job either on his or her own or with the help of a “reasonable accommodation.” However, an employer does not have to provide a reasonable accommodation that will cause “undue hardship,” which means it is something significantly difficult or expensive for the employer to provide.
The ADA was recently amended by Congress, resulting in a shifted focus from whether a person qualifies as disabled to whether an employer has complied with its ADA obligations. One of the defenses remaining for employers facing a failure to accommodate claim will be that despite reasonable accommodations, a disabled employee simply could not perform the essential functions of his or her job.
How does an employer prove the essential functions of a job? One way is by pointing to your job descriptions. Ideally, job descriptions are thorough, up-to-date, and accurate. You can make sure your job descriptions are accurate by reviewing each position closely and determining what that person needs to do to fulfill his or her responsibilities.
When reviewing each job description, consider whether regular attendance (or attendance on scheduled days) is an essential function of that position. For a position that can easily be completed through telecommuting, attendance is probably not an essential function. For a position that requires that the individual be physically present, however, attendance would more likely be considered an essential function.
A couple recent cases may help illustrate this point. In one case, a human resources staffing associate applied for a position within her company that required her to work at the company’s headquarters, instead of from home, where she had been working. Due to her disability, however, she was not able to travel to or work on the company’s campus. She was not promoted and the federal district court in Washington found that the employer did not fail to accommodate her disability because she was unable to perform an essential function of the job.
In another case, a surgical technologist did not have regular attendance, nor could she be relied upon to be available when she was “on call.” In this case, the Third Circuit was persuaded that attendance was an essential function of the job in part because the ability to “take call and work shifts as required” was listed on her job description as a “principal function” of her job. Again, the employer defeated the claim.
In both cases, the courts found that the employers did not fail to accommodate the employees’ disabilities. The courts were persuaded by the fact that the job descriptions listed the need to be physically present as a part of the job’s responsibilities. Of course, the courts were also persuaded the jobs at issue required in-person attendance. As previously stated, accuracy in job descriptions is important including information regarding the necessity, if applicable, for regular in-person attendance.
Creating and periodically reevaluating job descriptions to ensure that they are kept current can provide strong ammunition for organizations when faced with a disability discrimination claim, and specifically, with a failure to accommodate claim. If, however, a particular duty such as in-person attendance is not included in the job description it will make it more difficult to establish that the duty at issue it is an essential function of the job.