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Review job description to reflect realities of position

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in Employment Law,Human Resources

Disabled employees are entitled to reasonable accommodations that allow them to perform the essential functions of their jobs. But employers who don’t specify essential functions and don’t ensure their job descriptions are up to date risk “function creep” in which the employee slowly, informally whittles away at the job to the point some tasks appear no longer essential.

Then, the employee can demand those tasks be ignored entirely if he or she can’t perform them.

Take, for example, an employee who works in an office setting but who slowly starts doing the job almost entirely in isolation—via e-mail and phone. The employee can argue that face-to-face contact isn’t essential. Then, if the disability makes it hard to come to the office, he or she can request telecommuting privileges. The employer will be hard-pressed to argue that being in the office is essential.

Recent case: Karen Carlson, who has epilepsy, worked for Liberty Mutual Insurance as a regional medical director. Her job description listed daily attendance as an essential job function and required constant interaction with nurses and adjusters.

When she had a seizure despite taking medication, her doctor told her she couldn’t drive. She asked to work from home as a reasonable accommodation, arguing that she could do the job just as well from home as in the office.

Liberty Mutual nixed the idea and pointed to the job description, plus the testimony of other employees. Although it acknowledged most of her job might be done from home, it also insisted that an important aspect of the position was interaction with the rest of the office at least part of the time. Since Carlson claimed she could never come to the office, she was discharged.

The 11th Circuit Court of Appeals dismissed the case. It reasoned that employers have the right to insist on
a physical presence and can hold employees to reasonable expectations. (Carlson v. Liberty Mutual Insurance, No. 06-15417, 11th Cir., 2007)

Final note: Review job descriptions regularly and make sure employees follow them. That means no informal work-from-home schedules or avoiding a physical presence. You have a right to run your work force the best way possible. Employees shouldn’t dictate how you do business. Set the essential functions of the job and make them stick. 

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