Unless you’re willing to risk losing an ADA reasonable accommodations lawsuit, don’t wait to define the essential functions of your employees’ jobs.
Courts frequently defer to employers that have clearly spelled out both essential and nonessential job functions before a disabled employee requests an accommodation. However, they often view with suspicion attempts to create essential functions after a request has been made.
If you haven’t already done so, add this to your to-do list: Create job descriptions that specify essential and nonessential functions. Then revise your employee handbook and policies to reflect the changes.
Recent case: Karin worked for Farmers State Bank of Hartland as the loan processor. Part of her job also involved auditing the bank’s compliance with federal lending laws. It was a full-time, salaried position.
She was diagnosed with multiple sclerosis in 2004 and experienced a severe relapse in 2006 that caused fatigue, impaired mobility, balance problems and discomfort. She began making more frequent trips to her medical caregivers.
By the following summer, Karin believed she needed reasonable accommodations for her condition. She requested permission to attend medical appointments during regular banking hours, along with more flexible hours so she could work weekends and evenings. Some of her requests were approved.
By fall, the bank decided it wanted to change Karin from a salaried employee to an hourly one. It also demanded that she sign off on several medical releases. Karin then filed an EEOC complaint.
Then controversy erupted over a compliance audit Karin completed. She found that the bank’s significant violations had declined, but its overall violations increased. The bank then terminated Karin, ostensibly because it disagreed with her audit methods.
Karin sued, alleging disability discrimination, failure to accommodate and retaliation for engaging in protected activity.
The bank defended its actions by arguing that Karin, even if she were disabled, wasn’t protected by the ADA because she couldn’t perform the essential functions of her job. The bank defined those as being present during normal banking hours.
The only problem with that argument was that it had never defined Karin’s essential functions before she began requesting reasonable accommodations. Neither her job description nor the employee handbook listed banking hours as essential.
The court said a jury should decide whether keeping regular hours was an essential function of Karin’s job.
In addition, Karin’s attorneys uncovered a series of emails (sent well before the audit) suggesting she was being set up for discharge after her condition worsened. One email questioned whether it would be a waste of money to send her to training or set a goal list for her if “this is a done deal.” Another email stated that a supervisor was reassigning tasks so that when “she leaves at that point then we are somewhat prepared.”
As far as retaliation, the lawyers pointed to Karin’s testimony that she was informed her lending authority was revoked because she “could not be trusted.” That happened after she filed her initial EEOC complaint.
The court said the case should go to trial. (Wandersee v. Farmers State Bank of Hartland, No. 10-4159, DC MN, 2012)
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