Employers covered by the Americans with Disabilities Act (ADA) (15 or more employees) are familiar with the phrase “essential job functions” when it comes to legally accommodating employees and applicants with disabilities.  When examining company  jobs, what job functions are essential, are what are marginal?  The distinction is very important when it comes to dividing job functions and deciding if your company should re-assign the function, or consider it not critical to position itself.

The EEOC states that essential functions are the basic job duties that an employee must be able to perform, with or without reasonable accommodation.  Factors to consider in determining if a function is essential include: (1) whether the reason the position exists is to perform that function; (2) the number of other employees available to perform the function or among whom the performance of the function can be distributed; and (3) the degree of expertise or skill required to perform the function.  The company’s judgment and the written job description are considered by the EEOC as evidence of essential functions.  Other evidence includes: actual work experience by employees, time spent on function and the consequences of not requiring that an employee performs the function.

A real world example occurred with the City of Anderson Transit System v. Brown.  A 28 year employee was terminated because his diabetes prevented him from holding a commercial drivers’ license (CDL).  When the employee was transferred to a street supervisor, the job description listed a qualification as holding a CDL because he may have to drive a bus in an emergency.  In previous positions, the City had accommodated the employees diabetes and had waived the CDL requirement. The determination of “essential function” is a question of fact (for the jury) and not a question of law (for the judge).  In this case, the jury determined that the the CDL was not an essential function because: (1) supervisor testified that prior employee had not driven a bus in 4 previous years; (2) there were other people with CDLs to handle emergencies; and (3) the position did not spent any time driving or needing a CDL.  Bottom line: It is a best practice to maintain written job descriptions that identify essential job functions, but it is just as important to ensure that the importance, frequency and closeness of the function to the core essence of the position shows it is “essential”.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations.  We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com