The ADA requires employers to try to find reasonable accommodations so disabled employees can perform the essential functions of their jobs. It’s up to employers to determine which functions are essential and which ones aren’t.
Courts rarely second-guess employers that follow a few simple rules when a disabled employee challenges the employer’s list of essential functions.
The factors courts consider are:
- The employer’s judgment of what is essential
- The written job description, especially if it was prepared before the job was advertised and before candidates were considered
- The actual amount of time employees spend performing the job function
- The consequences if the employee doesn’t perform the function
- Whether a collective-bargaining agreement (if one is in effect) addresses the function
- What past employees holding the job have done
- What other employees in similar jobs do.
The more your list of functions aligns with those factors, the harder time a disabled employee will have arguing that a function isn’t essential.
Note: As you can see, having a written job description that accurately reflects what happens on the job is essential to backing up claims that certain functions are essential.
Recent case: Howard Kiburz worked as a civilian IT specialist for the U.S. Navy. According to his job description, a large part of his work consisted of “providing technical advice/assistance to customers, … participating in extensive coordination/consultation [and] providing lower-level software engineers with guidance and assistance….”
Kiburz suffered from back problems and missed work every year beyond his 12-week entitlement and other leave. He took the time as unpaid personal leave.
Finally, Kiburz was warned that if he didn’t come to work more frequently, he would face possible discharge. His boss explained that it was next to impossible to schedule because Kiburz so frequently missed work with no warning. The supervisor then said Kiburz would no longer be able to take unpaid leave once he used up his annual allotment of time off for all reasons.
That’s when Kiburz requested that he be allowed to work from home as a reasonable accommodation. His request was denied.
Finally, Kiburz accepted an early retirement offer—and then he sued, claiming the Navy had forced him out by refusing to provide the work-at-home accommodation.
The 3rd Circuit Court of Appeals dismissed his case. It reasoned that, with its job description and testimony about the nature of the work, the Navy had shown that being in the office on a regular basis was an essential function of the job. (Kiburz v. England, No. 09-2184, 3rd Cir., 2010)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- Try to offer same job to returning worker, not just same title, salary
- Constructive discharge a tough sell after you ask to be fired
- The EEOC's new initiatives for 2008: All talk … or a real threat?
- Payback: Courts strike at NLRB ... and the NLRB strikes right back