A Marginal Duty is Not an Essential Function: ADA Hazard for Employers Denying "Reasonable Accommodation"

When responding to an employee's request for accommodation under the Americans With Disabilities Act ("ADA"), employers have come a long way from the days of knee-jerk denials and assumptions that an inability to perform each and every duty of a job means an employee cannot be accommodated under the law.  This is particularly true since the expansion of the ADA by the Americans with Disabilities Act Amendments Act ("ADAAAAA..."), which took the focus of disputes away from whether the employee was disabled under the law and turned the attention to the interactive process and what constitutes a reasonable accommodation. We have trained and employers have listened! The result has been a better understanding of both the rights and legal obligations of employers. 

Every once and a while, though, an issue develops in the cases that we can all learn from, and one such issue appearing in multiple cases this year prompts this post.  

Can a task that is rarely performed be an essential job function justifying a refusal to accommodate when an employee is unable to perform the task due to a disability? Likely no, and here is why.  A marginal duty is not an essential job function and the inability to perform a marginal function cannot serve as the basis to deny an employee's otherwise reasonable request for accommodation.  

Consider hypothetical #1- Bob, an employee was hired into a mechanics helper position, a position responsible for assisting with mechanic duties naturally, as well as washing, cleaning and refueling vehicles.  Based on a 23 year old job description (let's call that less than current), the position on paper also required the employee to have a commercial driver's license ("CDL") because the mechanics helper "may occasionally drive and deliver buses to various field locations."  

Bob held this position for 12 years.  Bob, however, did not have a CDL and was not able to obtain a CDL due to hearing and vision impairments, known at the time of his hire.  So why twelve years into his job was this an issue? In our hypothetical, a new supervisor was brought in to oversee Bob's department.  The supervisor, who let's assume had been on the job for one day, reviewed the 23 year old job description and told Bob that if he didn't have a CDL within a matter of days, he would be terminated.  Bob told his new supervisor that he would not be able to get a CDL because of his medical conditions and requested an accommodation, noting that he had never once driven a bus to any field locations in the twelve years he worked as a mechanics helper.  The task, which did appear on the job description, in reality was not performed regularly.  Heck, for Bob, it was not performed at all.  Despite this reality, the supervisor stuck to his position and Bob was terminated.  

Hypothetical #2- a route driver with epilepsy who worked for six years in his position without any performance issues or incidents was transferred to a package handler position, which came with less pay and reduced benefits.  The employer transferred the employee because, due to his epilepsy, he would not be able to drive commercial motor vehicles (i.e. trucks over 10,000 pounds) under federal regulations due to his medical condition.  This specifically meant that the employee could not drive a "step van" for the employer, one of two van options used for deliveries.  Driving a "step van" was a technical requirement of the route driver position.  However, for the six years that the employee held the driver position, 95% of the time he drove a "G-Van," a smaller truck that did not exceed 10,000 pounds.  

No one was asking the employer to violate federal law.  The employee was asking, however, that he be accommodated in the route driver position by being  scheduled to drive only the smaller truck, something he had done for the majority of his tenure in this job.  Past practices revealed that the employer had made small modifications to assist drivers in the past with requests to exclusively drive one van type.  Only three of the employer's twelve routes required use of the heavier step van, and routes were randomly assigned each morning.  The issue became whether driving a particular type of vehicle was an essential job function.  The company believed the ability to drive the step van was essential and refused the accommodation. 

These not-so-hypothetical scenarios resulted in disability discrimination claims that have now been permitted to go to trial. Could these situations have been avoided? Possibly, and here is how.

 An essential function is a fundamental job duty required of the person on the job; the reason the position exists is to perform that function. A job function may also be essential if there are a limited number of employees available among whom the function can be distributed.  Is the function highly specialized such that the employee was hired for his/her ability to perform the particular function?  If so, it is likely essential.

While the employer's judgement as to what functions may be essential will be considered by courts, that judgment is only one factor.  Other things that will be considered include the written job description, the amount of time actually spent performing the function, the consequence of not requiring the function to be performed by the employee, and the actual work experience of those in the job.  The job description will not trump reality and a failure to take an honest look at what the employees are actually doing day in and day out in the job in question will increase the risk that employers will find themselves on the wrong end of a legal claim.

These other considerations mean that before a decision is made to refuse an accommodation based on the belief that the requested accommodation is unreasonable because it prevents the employee from performing an essential function, an employer must not exclusively rely on a written job description.  The employer should review and study the actual tasks performed by the job and the amount of time spent on each duty.  A task that is rarely, if ever performed, is not essential.  Also, review past practices.  Taking a position contrary to actions you have taken in the past will only add to the employer's risk.  Don't overlook or underestimate common sense.  Finally, consult your legal counsel early and often in these circumstances. 

There are no silver bullets, but rushing the process and failing to take into account a variety of facts and circumstances will only lead to problems for employers attempting to navigate the interactive process and find reasonable accommodations.