Avoid Thoughtless Approach to Essential Function Determination

By Dan Gephart, July 15, 2020

Essential can be a loaded word. Any discussion on whether something is essential – whether it’s workers, food, or art – will likely not lead to consensus. Would you have considered GrubHub drivers “essential” workers at this time last year? Probably not. Despite the authoritative nature of the word itself, essential is subjective in most cases.

But when it comes to reasonable accommodation for a disability and an employee’s job functions, essential is not a word to be played with loosely.

In order to be a “qualified individual with a disability,” an employee must meet the basic job qualifications and be able to perform the essential functions of the job with or without reasonable accommodation. When you actually identify the essential functions of a job, you might find that they’re not always what you may think they are. As you go through this process, it’s important that you analyze each function and avoid rash decisions.

Consider the following:

The time spent on the function may not be as important as the consequences. Here’s an example: A firefighter may not regularly have to carry an unconscious adult out of a burning building. However, the consequence of failing to require the firefighter to be able to perform this function would be serious.

Outcomes are more important than how the function is usually performed. Essential functions are the fundamental duties of a job — the outcomes that must be achieved by someone in that position, not the means by which those outcomes are achieved. There are plenty of EEOC cases where agencies felt an employee was not qualified because of a lifting restriction, only to find out there are a lot of ways to move items. In Small v. U.S. Postal Serv., EEOC Appeal No. 0720100031 (Apr. 5, 2012), a push cart was just as effective as a satchel for a letter carrier with a lifting restriction.

The written job description isn’t the be-all and end-all. Just because a function is in the job description doesn’t necessarily mean it’s essential. Sometimes the position description includes functions the employee never actually performs, while functions that are essential have become part of the job over time. Focus on whether you actually require the employee in the position to perform the functions that you claim are essential. You’d be surprised to find out how many functions are listed in the job description that the employee has never actually done and will never need to do. The written job description can be evidence of an essential function – but it’s not the be all-end all.

And here is the best example, why you shouldn’t rush to make a decision.

Attendance is not an essential function. In Cottrell v. USPS, EEOC Appeal No. 07A00004 (2001), an employee with ADD couldn’t be in the workplace certain days of the week due to his disability. However, there was a reasonable accommodation that allowed the employee to complete essential functions.

In many jobs, of course, attendance seems to be essential. But in the federal government, poor attendance is looked at as a potential undue hardship, not as an essential function.

Here are some other considerations, per 29 CFR § 1630.2(n)(2), as you determine the essential functions of a position:

• The reason the job exists is to perform that function.
• A limited number of employees available to perform the function/
• The function is highly specialized such that incumbent is hired based on expertise or ability to perform that function.

If you’re looking for training on reasonable accommodation, FELTG has plenty of options. Reasonable Accommodation in 75 Minutes, which will be presented by former EEOC Dallas Region Chief Judge Dwight Lewis, will be one of 14 sessions we’re offering during our conference-like event Federal Workplace 2020: Accountability, Challenges, and Trends during the COVID-19 Pandemic.

Also, you can register now for the Reasonable Accommodation in the Federal Workplace webinar series, which begins on July 30. You can register for any or all of the five 60-minute webinar events.

The bottom line: Take requests for reasonable accommodation seriously. There may be times when you’ll find an employee is not qualified for the position with or without a reasonable accommodation. But if you take an open-minded, creative and analytic approach to reasonable accommodation requests, you’ll find that in almost all cases you’ll find an effective solution. Gephart@FELTG.com