It’s Essential: WI Employers Must Understand Essential Job Functions

September 9, 2016

To be a qualified individual with a disability under the Americans with Disabilities Act (ADA), an employee or applicant must be able to perform the essential functions of the job with or without an accommodation. In considering which accommodations are reasonable under the ADA, employers may have to eliminate marginal job duties, but they don’t have to eliminate essential functions.

Under the federal Family and Medical Leave Act (FMLA), an employee may take protected leave for a serious health condition, meaning he is unable to perform the essential functions of his position. The Equal Employment Opportunity Commission (EEOC) says that under the Pregnancy Discrimination Act (PDA), an employer may have to remove an essential job function to help employees with pregnancy-related work restrictions or limitations. Understanding essential job functions is critical to complying with federal antidiscrimination laws.

ADA Regulations

Following the enactment of the ADA Amendments Act (ADAAA), the EEOC issued regulations addressing the changes Congress made to the ADA. Specifically, the regulations define “essential functions” for purposes of the ADA and discuss how to determine whether a job function is essential or nonessential. Essential functions are the fundamental duties of a position; marginal job duties aren’t essential functions.

The regulations provide scenarios in which a job duty may be an essential function. First, a function may be essential if a job exists to perform the function. For example, let’s say you create a word processor position to type tapes dictated by medical professionals. Typing would be an essential function because it is the reason the position exists. Second, a function may be essential if a limited number of employees are available and able to perform the function. Finally, a function may be essential if it is so specialized that you hired a specific employee because of his ability to perform the function.

The initial inquiry into whether a job function is essential depends on whether the employer actually requires employees in the position to perform the duty. As a recent decision from the U.S. 7th Circuit Court of Appeals (whose rulings apply to all Wisconsin employers) shows, the employer never or rarely requiring an employee in the position to perform the function is evidence that the duty is not essential.

When employees in a specific position actually perform a job duty, federal regulations explain which factors employers (and courts) should consider in determining whether the function is in fact “essential.” The first factor is the employer’s judgment regarding whether the job duty is essential. Employers are allowed to make decisions that are necessary to run their businesses. It’s not a court’s job to second-guess an employer’s determination that certain duties are fundamental to a position. For union employers, the terms of collective bargaining agreements may affect whether a job function is essential.

Second, courts look to written job descriptions prepared by employers to determine whether a duty is essential. A job description should exist before you hire an employee, provide an accommodation, or make an adverse employment decision. Although the law doesn’t require employers to have job descriptions, we recommend that companies create job descriptions for all positions and that job descriptions identify which duties are essential.
Third, the amount of time an employee spends performing a job function is relevant to whether it is essential. Generally, the more time an employee spends performing a job duty, the more likely it is a fundamental function. However, some job duties are essential even if they aren’t performed frequently.

Fourth, the EEOC considers the consequences of not requiring an employee to perform a function. For example, although a firefighter may not have to carry unconscious adults from burning buildings regularly, the consequences of failing to require a firefighter to be able to perform that function would be serious.

Finally, the EEOC directs employers to consider the work experience of past incumbents in the job as well as the experience of employees currently in similar jobs. All the factors should be considered. The EEOC says employers and courts must look at the factors as a whole and shouldn’t focus on a single factor when determining whether a job duty is essential.

Recent Decision

The 7th Circuit recently applied the essential job function analysis in an ADA lawsuit. Jack Brown was employed by the City of Anderson (Indiana) Transit System. He was hired as a bus driver, which required him to have a commercial driver’s license (CDL). He was promoted to a dispatcher position that didn’t require a CDL, which was fortuitous because he developed insulin-dependent diabetes and had to relinquish his CDL.

The city demoted Brown to a mechanic helper position that required a CDL. The city accommodated his disability by granting him an exemption from the CDL requirement. Brown was promoted to a street supervisor position, which had a requirement for a CDL in its job description. However, after a new mayor was elected, Brown was fired because he didn’t have a CDL.

Brown filed a lawsuit claiming the city failed to accommodate his disability by firing him for not having a CDL. The jury ruled in his favor and awarded him damages for back pay, benefits, and emotional distress. Because he prevailed on his ADA claim, the city was also
required to pay his attorneys’ fees. The city appealed.

The 7th Circuit agreed with the jury’s finding that the city violated the ADA. The city’s primary argument was that having a CDL was an essential function of the street supervisor position. To be a qualified individual with a disability, Brown had to be able to perform the essential functions of his job with or without an accommodation. Moreover, employers need not eliminate essential job functions when making reasonable accommodation decisions for individuals with disabilities. The 7th Circuit ruled that the issue of whether a job duty is an essential function is a factual question, not a legal one. That meant the jury—not the court—was charged with deciding whether the CDL requirement was an essential job function.

The court then looked at the EEOC’s standards for essential job functions and the evidence presented at trial. Although the street supervisor job description stated that a CDL was required, the court noted that was only one of a number of factors to be considered and was not dispositive. Brown’s supervisor testified that driving buses wasn’t a key responsibility of the street supervisor position and that other employees who possessed CDLs were typically available to drive buses. Further, the evidence showed that the amount of time street supervisors spent driving buses was minimal.

The court also looked at the work experience of past street supervisors, noting the evidence indicated that they rarely had to drive a bus. Finally, the court examined the consequences of not requiring Brown to have a CDL and noted that the evidence demonstrated that an employee with a CDL was generally available to drive a bus within 10 minutes. Brown v. Smith, Case No. 12-CV-1712 (7th Cir., June 28, 2016).

Bottom Line

The concept of essential job functions is critical under a number of federal laws, including the ADA, the FMLA, and the PDA. In this case, the 7th Circuit ruled that the question of whether a job duty is essential is a factual inquiry. In answering that inquiry, courts will examine the factors articulated in the EEOC’s ADAAA regulations. To make employment decisions that comply with federal antidiscrimination laws that use the essential job function analysis, it is critical to look at all factors and not focus on one issue (e.g., whether the job description treats a job function as essential).

This article, slightly modified to note recent updates, was featured in the August 2016 issue of the Wisconsin Employment Law Letter, which is edited by Axley Brynelson Attorney Saul Glazer and published by BLR®—Business & Legal Resources. Reproduced here with the permission of BLR®—Business & Legal Resources.

For more information about "It’s Essential: WI Employers Must Understand Essential Job Functions," contact Michael J. Modl at mmodl@axley.com or 608.283.6702.