A recent case highlighted for me (and now for you) an interesting point under the Americans with Disabilities Act (ADA) – whether essential job functions can change. As you may know, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. This means that the issue of what are the essential functions of the job is critically important.
According to the EEOC, 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.
Although the first factor identified by the EEOC is the employer’s judgment, be warned – the EEOC will not simply accept the employer’s blanket say-so! It will look to other evidence to support the employer’s position on the essential nature of the job functions. So while an employer certainly has the right to determine what functions are essential to a particular job, that determination had better be supported by reasonable, legitimate, job-related criteria.
The interesting point raised by the case of Wickware v. Johns Manville is that essential job functions are not set in stone – that employers have the right to change those essential job functions (although plaintiff’s attorneys would have you believe otherwise!). As the U.S. Court of Appeals for the 10th Circuit stated, the ADA “generally does not limit an employer’s ability to establish or change the content, nature, or functions of a job.” (internal quotations and citation omitted). Rather, the relevant inquiry is “whether a job function was essential at the time it was imposed.”
Of course, employers cannot change a job’s essential functions simply in order to make a disabled employee unable to perform that job (that would be a violation of the ADA!). The changes must be tied to actual business needs – and the employer should be able to demonstrate those objective business needs and the necessity for the change!