Following up on my recent post, “Employer May Change Essential Functions of the Job,” I thought we’d discuss another little-mentioned aspect of essential job functions under the Americans with Disabilities Act – job functions that are rarely performed can still be essential!
As we’ve previously discussed, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. The ADA regulations define “essential function” as “a fundamental job duty of a position.” But how do you determine what are the essential functions of a particular job? According to the Equal Employment Opportunity Commission (which is the federal agency charged with enforcing the ADA) and the regulations, the following factors should be taken into account in determining whether a job function is essential:
- whether the reason the position exists is to perform that function,
- the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
- the degree of expertise or skill required to perform the function.
The EEOC also identifies the following types of evidence that can be used to establish that certain job functions are essential:
- the employer’s judgment as to which functions are essential,
- a written job description prepared before advertising or interviewing for a job
- the actual work experience of present or past employees in the job,
- the time spent performing a function,
- the consequences of not requiring that an employee perform a function, and
- the terms of a collective bargaining agreement.
In Bagwell v. Morgan County Commission, the employee was hired as one of two groundskeepers at a park, which served as a community recreational facility with baseball, soccer and football fields, a nature trail, and a paved walking path. According to the employer, the groundskeeper position exists to maintain the park. The job description contained a long list of job functions, all of which were quite physical but some of which (like construction, plumbing or irrigation installation) were, as the employer admitted, “rarely” performed. The employee argued that, in practice, she only performed limited functions – mainly cleaning bathrooms and removing trash – and therefore those were the only essential functions of the job.
The U.S. Court of Appeals for the 11th Circuit, however, determined that (according to the job description, the employer’s judgment, and even the employee’s own admission) the job “could entail any function needed to maintain the park,” including the long list detailed in the job description. That includes duties that are rarely performed – but if needed, are essential to the maintenance of the park. Moreover, the Court observed that “a novel maintenance could arise” that the employee could not perform at all – and it would not be reasonable to expect the only other groundskeeper to be able to perform the task or to hire a third party to do so, because that “would undermine the reason for the position’s existence.”
So, employers, remember that you do actually get to define the purpose of your job positions – but make sure your definitions are valid, consistent, and logical!