An issue that seems to be at the forefront of more and more Americans with Disabilities Act cases is whether the plaintiff was able to perform the essential functions of the job in question, with or without reasonable accommodation.

The U.S. Court of Appeals for the Tenth Circuit just faced the issue in a case--EEOC v. Picture People Inc.--brought by the Equal Employment Opportunity Commission on behalf of a deaf worker.

EEOC argued that the employer, a photography studio, failed to make reasonable accommodations for the worker's inability to communicate verbally, such as by providing a sign language interpreter during important meetings.

However, a divided panel decided that the outcome of the case hinged on the employer's written position description for the job held by the plaintiff, which listed strong verbal communication and customer relation skills as necessary qualifications. Because the plaintiff did not possess those skills, she was unable to perform all of the essential functions of the position and was not entitled to relief under the ADA, the panel held.

In addition, several federal courts this year (the Ninth Circuit, the District of Idaho, and the Eastern District of Virginia) have decided the frequently litigated question of whether attendance or presence in the office is an essential function of the job. One case turned on whether it is necessary for a bank compliance officer to keep "banker's hours."

Other recent interesting cases involving the "essential functions" issue include holdings that:

• The Philadelphia Police Department did not violate the ADA when it required a police officer returning from leave for post-traumatic stress disorder to undergo a psychological fitness exam.

• The ability to reassign a job task to a subordinate employee does not render the task "nonessential" for ADA purposes.

• Repeated on-the-job seizures can make an employee in a safety-sensitive position unqualified under the ADA.

• The inability to perform an essential job function likely is not excused on the basis of mental disorder.

• A Cincinnati hospital did not violate the ADA when it suspended a nurse who blacked out at work, possibly as a result of her use of morphine and other drugs prescribed for her gastrointestinal problems.