Need to Reassign Essential Job Duties as a Reasonable Accommodation

July 19, 2011

Under the Americans with Disabilities Act (ADA), an employer generally doesn’t have to accommodate an employee by removing essential job functions that he is unable to perform. Moreover, you, as the employer, get to determine in large part what the essential functions for a particular job are.

When employees work on a crew in which the crew members are cross-trained and required to perform all functions of each job, you can require them to perform the essential job functions of each crew position, with or without a reasonable accommodation. The Seventh U.S. Circuit Court of Appeals (the federal court of appeals for Wisconsin) recently concluded that there is an exception to that general rule, however. If you allow your employees to rearrange duties among themselves so that all crew members aren’t, in practice, performing all crew job duties, you may be required to reassign essential job functions as a reasonable accommodation.

Congress enacted the ADA in 1990. Title I of the Act prohibits employment discrimination based on disability. A number of states, including Wisconsin, already had laws protecting employees from disability discrimination in the workplace. As with most new laws, the language of the ADA raised more questions than it answered, such as: (1) When is a person disabled? (2) What does it mean to be substantially limited? (3) What constitutes a major life activity? (4) When is a person a “qualified individual with a disability”? (5) What is the interactive process and when is it required? and (6) What is a “reasonable accommodation”?

As employers and employees litigated those many issues, a body of law developed to provide guidance for both employees and employers on their duties and obligations under the ADA. Over the years, the U.S. Supreme Court, the final decisionmaker on what the ADA means, issued a number of decisions that interpreted the Act and assisted employers and employees in meeting their obligations under the law.

Congress, apparently unhappy with the direction of the Supreme Court’s decisions, amended the ADA in 2008, effective January 1, 2009, to “correct” the Court’s rulings and provide additional protections to employees. That has resulted in a new series of cases in which the courts are again trying to give meaning to Congress’ amendments to the ADA.

Reasonable accommodation
Most federal and state laws that address discrimination in the workplace don’t require employers to take affirmative steps. Instead, you simply must not base your employment decisions (e.g., hiring, promotion, compensation, and termination) on a protected basis such as race, sex, religion, age, or national origin. The ADA, on the other hand, requires you to take specific steps to avoid liability.

For example, you must take reasonable measures to accommodate disabilities, and failing to do so can result in liability for monetary damages, reinstatement of a discharged employee, and payment of his attorneys’ fees and costs. Courts have decided literally hundreds of cases on the subject of what constitutes a reasonable accommodation. Of course, the answer will always depend on a variety of circumstances.

As a general rule, a disabled employee has to be able to perform the essential functions of his particular job with or without reasonable accommodation. An employer doesn’t need to eliminate an essential job function as an accommodation. For example, you don’t have to hire another person to perform an essential job function that a disabled employee isn’t able to perform. And generally, you don’t have to reassign an essential job function to other employees as a reasonable accommodation.

Bridge worker is afraid of heights
The Seventh Circuit recently concluded that there may be circumstances in which a reasonable accommodation requires the employer to reassign essential job functions to other employees. The employee in the case, Darrell Miller, worked on a bridge crew for the Illinois Department of Transportation (IDOT). A bridge crew comprises a bridge technician and four highway maintainers. Miller was a highway maintainer.

The duties of a highway maintainer include performing tasks on the ground such as operating and repairing maintenance vehicles and equipment; maintaining large culverts, abutments, and guardrails; spreading salt, sand, gravel, and asphalt; disposing of trash and highway debris; and performing record-keeping duties. Some bridge crew duties require working at a height above the ground or above water, including chipping, sealing, and cleaning bridges and cleaning and painting bridge bearings.

Although Miller wasn‘t originally diagnosed with acrophobia when he began working for IDOT, he did inform his lead worker that he had a fear of some heights and there might be tasks he was unable to perform. He estimated that his fear of heights may have created problems with less than three percent of the duties in his job description.

Miller was able to work successfully on the bridge crew without incident for several years. At one point, he was assigned the task of changing a light bulb, which required him to stand on a bridge beam, and he was unable to do it. That was apparently the only assigned task he was unable to complete because of his fear of heights.

As a result of the light bulb incident, IDOT placed Miller on sick leave and ordered him to submit to a fitness-for-duty examination. IDOT’s physician diagnosed him with acrophobia and concluded he was unfit to work as a highway maintainer. Miller requested, as a reasonable accommodation, that he not be required to work on bridge beams and other extreme places higher than 20 to 25 feet. IDOT denied his accommodation request. He was discharged shortly after returning to work for threatening a female employee.

Miller sued his employer under the ADA, and the trial court threw out his lawsuit. The court found that rearranging job tasks among members of the bridge crew was unreasonable and that working at heights above 25 feet was an essential function of Miller’s job. If he wasn’t able to perform his essential job functions without an accommodation, he wasn’t a qualified individual with a disability and therefore wasn’t protected under the ADA.

Change in duty to reassign essential job functions
On appeal, the Seventh Circuit found that the trial court was wrong in throwing out Miller’s ADA reasonable accommodation claim. First, the court of appeals found that the employer “regarded” Miller as having a disability, even though his fear of heights may not be serious enough to actually constitute a disability under the law. The court then looked at the reasonable accommodation question.

Recall that the general rule is that to be protected under the ADA, a disabled employee must be able to perform his essential job functions with or without accommodations. In determining what an essential job function is, courts consider a number of factors, including the judgment of the employer. The Seventh Circuit found that the essential job functions of a bridge crew worker include working at heights in extreme or exposed conditions. Nevertheless, the court examined IDOT’s actual practice in assigning the crew members’ duties.

The court concluded that not every bridge crew member had to be able to perform every job duty. According to the court, crew members routinely helped one another and performed tasks for each other. Consequently, the court reinstated Miller’s case.

The court of appeals said a jury must decide whether the employer had to reassign job tasks to other workers on the crew as a reasonable accommodation, even though the tasks may be essential job functions. The court recognized the continued vitality of the general rule that an employer doesn’t have to reassign essential job functions as a reasonable accommodation, but it carved out an exception under which the employer in essence allows workers to rearrange job duties among themselves. Miller v. IDOT, Case No. 09-3143 (7th Cir., May 10, 2011).

Bottom line
If you haven’t yet done so, you should examine each of your employment positions and determine which job duties or functions are essential. Federal regulations and case law provide guidance on what should be considered in identifying functions that are “essential” for purposes of the ADA. Those factors include the employer’s judgment, the written job descriptions, the amount of time spent by the employee performing the duty or function, and the consequences of not requiring the employee to perform the particular function. It’s important to state in your job descriptions which functions are essential.

Many jobs require working on a crew in which all crew members are cross-trained on all job duties and are required to perform all functions of each position on the crew. The ADA recognizes such arrangements, and it is appropriate to require each crew member to be able to perform the essential functions of each job with or without a reasonable accommodation. The Miller case makes clear that if you permit crew members to assign tasks among themselves so that some workers don’t have to perform some job duties, you may lose the benefit of the general rule that you don’t have to reassign essential job functions as a reasonable accommodation. Employers would generally prefer to have the reasonable accommodation decision in the hands of a judge rather than a jury.

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