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HR MATTERS E-TIPS
THIS WEEK’S E-TIP: Essential Job Duties and ADA Disability Issues
Published by Personnel Policy Service, Inc.
"Your Policy and Compliance Experts Since 1972"
 
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THIS WEEK’S E-TIP: Essential Job Duties and ADA Disability
Issues
 

Can you terminate an employee who says he cannot perform certain job
duties because of a health condition? You need to consider carefully
your obligations under the ADA before taking this final action.
 
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THIS WEEK’S E-TIP: Essential Job Duties and ADA Disability Issues

Do you know what your obligations are to an employee who has been on
medical leave and wants to return to work, but cannot perform some of
the job’s functions? Or what about an employee who comes to you and
says he can no longer work in a “stressful” atmosphere because of a
medical condition? Do you have to accommodate these employees, or
can you terminate them?

The answer is, as often is the case in human resources, “it depends.” If
an employee is disabled and protected by the Americans with Disabilities
Act (ADA), you may have to accommodate that employee if doing so
would allow him to perform his essential job functions. (Download a free
Job Evaluations model policy
.) Accommodations may include shifting
nonessential job duties from the current job requirements. But, if the job
duties the employee is unable to perform are considered “essential,” you
may be able to terminate him if he cannot perform them with or without
an accommodation.

To make a decision about your proper response, you should go through
an ADA analysis to determine the employee’s protections and your
organization’s obligations. (Download a free Serious Diseases (ADA)
model policy
.)

* Definitions and Medical Certification *

To begin, you should determine if the employee’s medical condition is
covered as an ADA disability. Keep in mind that you only have a legal
duty to accommodate employees for disabilities actually protected by the
ADA.

The ADA defines disability as (1) a physical or mental impairment which
substantially limits a major life activity; (2) a record of having an
impairment; or (3) being regarded as having an impairment. The term
“major life activities” refers to those activities that are of a central
importance to daily life. The ADA regulations define “major life activities”
to include functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
According to the regulations, the term “substantially limits” means that
the person is unable to perform a major life activity that the average
person in the general population can perform, or the person is
significantly restricted in the way he can perform a particular major life
activity as compared to the average person.

The ADA allows you to require the employee to provide medical
certification of his disability and need for accommodation, beyond just a
general doctor’s note simply stating that he cannot engage in certain
activities or work in a stressful environment. Accordingly, you should
require specific medical certification verifying that the employee does
indeed have a disability that meets the ADA criteria and that he needs an
accommodation in order to perform the essential functions of his job.

* Essential Functions Explained *

If the employee can show he meets the ADA disability definition, you
should then determine whether his accommodation request actually does
involve essential job functions. The ADA regulations provide some
guidance to help you identify the essential functions of a given position.
The regulations define a job’s “essential functions” as those that are
“fundamental,” not “marginal,” and list three factors that help distinguish
fundamental job functions from marginal ones. These factors are:

(1) The performance of the function is the reason the position exists;
(2) There are a limited number of employees available who can
perform the function or among whom the job function can be distributed; and
(3) The function is highly specialized so that the person in the
position is hired for his special expertise or ability to perform it.
 
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In addition, the regulations suggest seven types of evidence that may
indicate a particular function is essential to a job:

(1) The employer’s judgment as to which functions are essential;
(2) Written job descriptions prepared before advertising or
interviewing applicants for the job;
(3) The amount of time spent on the job performing the function;
(4) The consequences of not requiring a person in this job to
perform the function;
(5) The terms of a collective bargaining agreement;
(6) The work experience of past employees in the jobs; and
(7) The current work experience of employees in similar jobs.

However, the factual determination of whether a function is essential
must be made on a case-by-case basis, and all relevant evidence should
be considered. (Download a free Job Evaluations model policy.)

If the employee’s accommodation request involves eliminating job
functions that are essential, your ADA analysis stops there. The ADA
only requires you to provide an accommodation that is reasonable and
that does not cause the employer an undue hardship. An
accommodation generally is considered “reasonable” only if it enables
the employee to perform the essential functions of the job. ADA
guidance from the Equal Employment Opportunity Commission (EEOC)
emphasizes that an employer is not required to eliminate a job’s
essential functions as an accommodation.

* Reasonable Accommodation May Mean Job Modification *

If, however, the employee is asking you to eliminate nonessential
functions of the job, you should continue your ADA analysis to determine
if the request would be a reasonable accommodation. The EEOC’s
Technical Assistance Manual explains that a reasonable accommodation
is “a modification or adjustment to a job, the work environment, or the
way things usually are done that enables a qualified individual with a
disability to enjoy an equal employment opportunity.”

Generally, accommodations must be provided to allow a disabled person
to perform the essential functions of the job and to ensure equal benefits
and privileges of employment. The ADA regulations make it clear that
reasonable accommodations may include job restructuring, such as
eliminating nonessential job functions or even reassignment to a vacant
position. (Download a free Serious Diseases (ADA) model policy.)

To determine the appropriate accommodation for a disabled employee,
the EEOC indicates that an employer should engage in a flexible,
interactive process that involves the employee. The process should
identify both the precise limitations resulting from the disability and the
potential reasonable accommodations that could overcome those
limitations.

You do not have to provide an accommodation, however, if doing so
would impose an undue hardship on the operation of the business. The
term “undue hardship” means significant difficulty or expense in, or
resulting from, the provision of the accommodation. The undue hardship
standard is very tough to meet and requires you to show that the
accommodation involves significant difficulty or expense; is unduly
extensive, substantial, or disruptive; or would fundamentally alter the
nature or operation of the business.

* Essential Functions Are Key to Analysis *

The above analysis demonstrates the importance of understanding your
employee’s essential job functions when evaluating requests to change
job duties because of a medical condition. If you can show that the
employee is asking you to remove essential functions of his job as an
accommodation, you most likely do not have any duty to accommodate
him under the ADA. Accordingly, you may be able to terminate him
because he cannot perform the essential functions of his job, with or
without an accommodation.

But, before you take any adverse employment action, you should go
through the analysis discussed above to determine whether the
employee is disabled under the ADA, whether the job functions he
cannot perform are essential, and whether you have a duty to provide an
accommodation. Clearly, this analysis can be both complex and
subjective and therefore, in most cases, should be reviewed by an
employment attorney.
 
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Subscribers to the Personnel Policy Manual (print/online) and HR Policy Answers on
CD can find information on the ADA disability definition and
reasonable accommodation in Serious Diseases, Chapter 203A, notes 7
and 13. For information on essential job functions, see Job Evaluation,
Chapter 304, note 8.

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