David K. FramDisability bias cases are getting into the weeds on whether specific tasks and duties are essential to particular jobs. Developing case law under the Americans with Disabilities Act and Rehabilitation Act on whether individuals with disabilities are “qualified” demonstrates courts are demanding that employers show why this person in this position must be able to perform this function.

Why is the essential function question critical to employers? As a matter of law, employers are required to reasonably accommodate the disability of an employee or applicant only when an accommodation would enable the individual to perform all essential duties.

Speakers at the National Employment Law Institute’s 26th Annual ADA & FMLA Compliance Update in Washington, D.C., April 14-15 explored the lastest case law under the ADA Amendments Act of 2008, as well as trends from a human resources and management perspective, on this issue.

NELI’s David Fram highlighted the big questions: Which things are and aren’t essential functions? What have the courts and the Equal Employment Opportunity Commission been saying about essential functions in the private- and public-sector workplace? From an employer’s perspective, how dangerous is an inaccurate job description?

In a May 6 interview with Bloomberg BNA, Fram weighed in on federal court decisions and on the disagreement the EEOC is having with the courts on essential functions.

David Fram is Director of ADA Services for NELI (http://www.neli.org/) and provides in-house training programs on the ADA. For new significant ADA cases, you can follow him on twitter (@FramNELI). Nothing in this blog is legal advice from Fram or NELI.

Bloomberg BNA: Whether an individual is qualified for a particular job depends, in part, on whether the person can perform the essential functions of the position. According to federal courts, what makes the performance of a particular function essential? What evidence is probative?

Fram: The federal courts have been giving special attention to particular pieces of evidence in determining whether or not a function is “essential” (or a critical part of the job). The most important pieces of evidence seem to be the job description, the amount of time spent performing the function, the consequences of not requiring the individual to perform the function, and the terms of a collective bargaining agreement. Courts give lip service to the employer’s “judgment,” but this generally isn’t a determining factor.

Bloomberg BNA: What effect does the availability of other employees have on whether a function is essential?

Fram: The limited number of other employees who could perform a function has traditionally been an important factor in determining whether a function will be considered essential. For example, in Robert v. Board of County Commissioners of Brown County, 691 F.3d 1211, 2012 BL 221613 (10th Cir. 2012), the court held that an Adult Offenders’ Supervisor position required in-person work, based in part on the limited number of other employees in the small office and the strain it caused for the other employees when she couldn’t perform these tasks.

Recently, there have been several cases in which courts have stated that having other employees around who could perform the function might possibly make a function “marginal.” For example, in Samson v. Federal Express Corp., 746 F.3d 1196, 2014 BL 82588, at *5 (11th Cir. 2014), the court stated that test-driving might not be an essential function of a Technician’s job because there were a number of “other licensed truck drivers at that facility among whom the test-driving could be distributed.”

Bloomberg BNA: Does the time spent performing a function bear on the essential function analysis? If so, what amount/percentage of performance time are courts saying distinguishes an essential function from a marginal one?

Fram: Courts haven’t required that a function be performed a “majority” of the time in order to be considered essential. For example, in one recent case, the court said that “administrative duties” which were performed only 15-30% of the time still could be considered essential for a medical facility administrator (Stern v. St. Anthony’s Health Ctr., 788 F.3d 276, 2015 BL 175978 (7th Cir. 2015)). In that case, the court said the situation might well have been different if those functions were only performed 5% of the time.  In another recent case, a court found that front desk receptionist duties might be essential where the employee had to perform those duties at least 2 hours every day (Abram v. Fulton Cty. Gov’t, 598 F. App’x 672, 2015 BL 21087 (11th Cir. 2015)).

Bloomberg BNA: In Stephenson v. Pfizer Inc., No. 14-2079, 32 AD Cases 1063, 2016 BL 62331 (4th Cir. March 2, 2016), the U.S. Court of Appeals for the Fourth Circuit ruled a jury must decide whether driving or traveling was an essential duty of a former pharmaceutical sales representative who was denied accommodation for vision loss resulting from an eye disorder.

Why is this distinction critical to the viability of Stephenson’s ADA failure-to-accommodate claim? What evidence was key to overturning the lower court’s summary judgment dismissal? Other thoughts on the decision?

Fram: The distinction is critical because if “driving” is essential, then the employer can require that the employee actually do the driving. But, if simply “traveling” is the essential function, then the employer can’t necessarily require that she drive (if her disability is the reason she can’t drive). In that case, the employer would have to provide a reasonable accommodation so that she could travel from place to place. One of the primary pieces of evidence on which the court seemed to rely was the job description, which didn’t list “driving.”

Bloomberg BNA: Federal courts are saying that attendance is an essential function and that working overtime or specific/rotating shifts can be essential to some jobs. However, the Equal Employment Opportunity Commission disagrees. How do the courts’ and the EEOC’s analyses differ with respect to these essential functions? What are some good cases for private-sector employers arguing attendance and overtime are essential?

Fram: The EEOC seems to be saying that attendance, shifts, and overtime aren’t actual “duties” or “outcomes” of a job and, therefore, can’t technically be considered “essential functions.” Courts, however, aren’t splitting hairs like this. Almost every court decision has concluded that regular, reliable, predictable attendance (which might include attending to one’s duties at home) is essential. 

Some recent federal court of appeals cases on attendance include Lane v. Clark County, 2015 BL 198100 (9th Cir. 2015) (unpublished), Starts v. Mars Chocolate North America LLC, 633 F. App’x 221, 2015 BL 407396 (5th Cir. 2015) (unpublished), Gardner v. School District of Philadelphia, 2015 BL 413534 (3d Cir. 2015) (unpublished), Preddie v. Bartholomew Consolidated School Corp., 799 F.3d 806, 2015 BL 272000 (7th Cir. 2015), and EEOC v. Ford Motor Co., 782 F.3d 753, 2015 BL 101968 (6th Cir. 2015). 

There have been fewer cases concerning “overtime,” but some recent federal court of appeals cases saying that overtime can be essential include Manigan v. Southwest Ohio Regional Transit Authority, 385 F. App’x 472, 2010 BL 158256 (6th Cir. 2010) (unpublished), and Tjernagel v. The Gates Corp., 533 F.3d 666, 2008 BL 144537 (8th Cir. 2008).

Bloomberg BNA: How might temporary (or permanent) telework arrangements affect private-sector employers’ ability to argue that attendance is essential?

Fram: Even in telework arrangements, I think that an employer can still argue that regular, reliable, predictable attendance is essential. In this case, the attendance would be at the employee’s home, rather than physical presence at the employer’s work site.

Bloomberg BNA: A federal judge in the Eastern District of Michigan decided April 11 that a delivery driver applicant with a 20-pound right-arm lifting restriction raised a triable disability bias claim (Evangelista v. Auto-Wares, LLC, 2016 BL 112347, E.D. Mich., No. 2:14-cv-12569, 4/11/16). The court concluded a genuine dispute exists on whether the ability to lift 50 pounds equally distributed between the arms is an essential function.

The focus is on whether lifting weight in a particular way is essential, rather than on whether the lifting requirement itself is essential. What do you make of the court’s novel analysis? 

Fram: The decision seems well reasoned to me. The court really focused on what was being accomplished on the job, as opposed to the way it was done. The court also noted that the job description talked only about how much the individual had to lift as a whole (as opposed to how much he had to lift with each arm). Importantly, the court also pointed to the fact that the individual had successfully performed his lifting duties in virtually identical jobs.

Bloomberg BNA: How are the facts of Evangelista distinguishable from a case like Scruggs v. Pulaski County, 2016 BL 103129, 8th Cir., No. 15-1248, 4/1/16, in which the U.S. Court of Appeals for the Eighth Circuit said the discharge of a juvenile detention officer was lawful because the officer couldn’t perform the essential function of lifting and carrying 40 pounds? Any other recent decisions from the federal circuits in which employers successfully argued lifting is essential?

Fram: I think the Evangelista decision is consistent with the Scruggs decision because both focus on the ultimate ability to lift as an essential function of the job. There are a number of recent federal court of appeals cases which have held, based on the particular facts, that lifting might well be an essential function of a job, such as EEOC v. Autozone Inc., 809 F.3d 916, 2016 BL 178 (7th Cir. 2016) (auto parts sales manager), Medearis v. CVS Pharmacy, Inc., 2016 BL 103553 (11th Cir. 2016) (unpublished) (store manager), EEOC v. Womble Carlyle Sandridge & Rice LLP, 616 F. App’x 588, 2015 BL 204985 (4th Cir. 2015) (unpublished) (support staff in a law firm), and Davis v. New York City Health and Hospitals Corp., 508 F. App’x 26, 2013 BL 20620 (2d Cir. 2013) (unpublished) (nurse).

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