United States: Flurry Of Recent ADA Cases Can Be Instructive For Employers, Part Two

There has been a burst of recent Americans with Disabilities Act (ADA) decisions from around the country that can teach valuable lessons to employers. Last month, we looked at three cases examining the question of whether an employee was "disabled" under the terms of the ADA. This month, we look to three more recent cases that examine another touchstone issue when it comes to disability discrimination litigation: whether a particular job task is an essential function of the job.

Issue No. 2: Is The Specific Job Requirement An Essential Function Of The Job?

After you have determined that your worker has an ADA-qualifying disability, you need to determine whether they are capable of performing the "essential functions of the job," with or without reasonable accommodation, in order to be protected by the ADA. Simply put, essential functions are the basic job duties that an employee must be able to perform in order to get the job done.

If a worker cannot do those tasks, even with accommodation, they are not considered qualified and therefore cannot maintain a claim. Moreover, employers never have to sacrifice essential job functions when accommodating an employee's disability, making the determination a critical component of every ADA analysis.

To determine whether a function is essential, you should look to whether the reason the position exists is to perform that function, how many other employees are available to perform the function, and the degree of expertise or skill required to perform the function. For example, imagine a worker who is instructed by their doctor that they can no longer drive a car because of their disability. If that person works for you as a delivery driver, the court will almost certainly consider driving to be essential because that's the very reason the position exists—to drive. But if that person works as your general office clerk and rarely ever drives as part of the job, and there are multiple other clerks available to drive if necessary to complete an errand, and driving to run such errands takes little skill, then that function is likely not essential.

The Perfect Case For Employers: All Signs Point Towards "Essential Functions"

Our first of three cases involves a man named Jerry Lee Faidley; he worked as a delivery driver for United Parcel Service in Iowa for over 20 years before he began to suffer injuries to his back and hip. After a six-month leave of absence following surgery, he returned to work with no medical restrictions in April 2012.

His return to work was immediately fraught with problems due to the physically intensive nature of his job. His second day back saw him work over 9.5 hours, and on his fourth day, he saw he was scheduled to work nearly 12 hours. "The way I'm feeling there's no way I can get that done," Faidley told his supervisor after he saw the schedule. He was excused from working that day, but returned to work the next week and soon was consistently working close to 10 hours a day.

Within several weeks, his doctor told Faidley that he needed to work limited duty, no more than 8 hours per day. Faidley then turned in an accommodation request to UPS, asking not to work any overtime from then on. He pointed out that there were over 100 other drivers at his local center and that he was sure that those drivers could handle any additional work necessitated by his restriction. UPS responded by stating that the ability to work overtime—9.5 hours per day or more—was an essential function of the job, and therefore his inability to do so rendered him unqualified for the job. Faidley responded by filing a lawsuit and claiming that UPS violated the ADA by not reasonably accommodating him.  

The lower court dismissed Faidley's claim, and on May 11, 2018, the 8th Circuit Court of Appeals affirmed the dismissal. The court noted that four factors should be examined when determining whether a function is essential or not. This case shows that employers can easily win such claims when each of them point in their favor:

  • Employer's judgment: The company noted that daily workloads can increase unpredictability, especially during the holidays or because of poor weather conditions, requiring drivers' hours to remain flexible and adaptable.
  • Written job description: UPS pointed to the fact that the "requirement to work overtime" was listed in the package car driver job description, developed well before Faidley filed his lawsuit.
  • Applicable collective bargaining agreement: The issue of mandatory overtime was negotiated with the Teamsters, with drivers agreeing to be scheduled up to 9.5 hours (and more when necessary) in exchange for the ability to request two shorter days per month.
  • Consequences of not requiring workers to perform the function: UPS pointed out that a driver automatically abandoning their workload at the eight-hour mark could force other drivers to be sent off to finish deliveries, or would result in untimely deliveries, either of which would adversely impact the company's business.

Faidley tried his best to salvage his claim, contending that the ability to work overtime should not be considered an essential function because he usually completed his required route in less than eight hours. But that was not enough to convince the court to rule in his favor, especially because he admitted that he did, on occasion, work overtime. "A task may be an essential function even if the employee performs it for only a few minutes each week," the court concluded.

Employers Can Prevail Even Under Tough Circumstances

But the stars do not need to always perfectly align in order for an employer to prevail in an ADA claim turning on the question of essential functions. "Today's opinion is a lesson straight out of the school of hard knocks," the 1st Circuit Court of Appeals said at the beginning of a recent opinion where the facts weren't necessarily in favor of the employer. "No matter how sympathetic the plaintiff or how harrowing his plights, the law is the law and sometimes it's just not on his side."

Victor Sepulvedea-Vargas worked as an assistant manager for a fast food franchise owned by Caribbean Restaurants, Inc. in Puerto Rico. In 2011, while making a bank deposit on behalf of his employer at the end of his shift, he was attacked at gunpoint, struck over the head, and had his car stolen. The attack left him with PTSD and major depressive disorder.

He sought several accommodations in order to be able to return to work as an assistant manager. The biggest request: Sepulvedea-Vargas wanted to be consistently assigned to one timeslot, working only a fixed work schedule. All assistant managers for Caribbean rotated among three different 10-hour work shifts starting at either 6:00 a.m., 10:00 a.m., or 8:00 p.m. Initially, his managers let him work one consistent shift while they considered his request. But after they had a chance to think it over, they informed him that he would have to return to working rotating shifts. Because Caribbean would not accommodate him as he requested, Sepulvedea-Vargas resigned from his position and filed an ADA lawsuit against the company.

On April 30, 2018, the federal appeals court ruled in Caribbean's favor and determined that the ability to work rotating shifts was an essential function of the job; Sepulvedea-Vargas's inability or unwillingness to do so doomed his ADA claim. Interestingly, many of the critical facts that led the 8th Circuit to dismiss Faidley's claim against UPS did not exist in this situation—there is no mention of a prewritten job description with this function listed as essential, and there was no collective bargaining agreement. So why did the court rule for Caribbean, especially with such sympathetic facts?

The court looked to ensure that the employer's asserted requirements were "solidly anchored in the realities of the workplace, not constructed out of whole cloth;" once satisfied they were, it had no trouble ruling for the employer. Caribbean contended that it was necessary to rotate shifts to ensure that all assistant managers faced an equal distribution of work, given the various requirements of each time period. The court agreed, noting that the permanent assignment of one specific shift to Sepulvedea-Vargas would have inconvenienced all other assistant managers, each of whom would have been required to consistently work "unattractive shifts" instead of Sepulvedea-Vargas. It also pointed to the job application and an original want ad in the newspaper for the position, each of which mentioned the necessity of working rotating shifts.

Finally, Sepulvedea-Vargas argued that the company's act of temporarily assigning him one specific shift while it sorted out his situation "proved" that such an arrangement was feasible and reasonable. The court rejected this argument, and said that this action did not box the company into accepting the arrangement permanently. "To find otherwise," it said, "would unacceptably punish employers from doing more than the ADA requires, and might discourage such an undertaking on the part of employers."

Lack Of Specificity On Job Description Can Be Costly

Finally, another recent case presents a situation that should offer an important lesson to all employers about the importance of clear and specific job descriptions. Stanley Snead worked as a campus security officer for Florida A&M University (FAMU) for over eight years before a game-changing decision was made by the university: the new campus police chief changed all of the officers' work schedules from eight-hour shifts to 12-hour shifts, hoping to better serve the school.

Snead tried the new system, but soon found himself physically ill and sought medical care. His doctor diagnosed him with high blood pressure and pointed to the new 12-hour shifts as the culprit. Snead sought the accommodation of reverting back to his eight-hour shift schedule in order to minimize his physical ailments, but the university denied the request as unreasonable. Snead retired instead of continuing in his position and sued FAMU under the ADA.

Snead's case went all the way to a federal court trial, where a jury ruled in his favor and awarded him over $250,000 in lost wages and mental and emotional anguish. FAMU filed an appeal with the 11th Circuit Court of Appeals hoping to overturn the verdict, but the appeals court sided with Snead in a February 21, 2018 opinion.

FAMU's main argument was that the ability to work a 12-hour shift should have been considered an essential function of the job, and therefore any accommodation request that sought to eliminate the requirement of a worker performing that length of shift should have been considered unreasonable. It argued that letting Snead off immediately upon the conclusion of an eight-hour shift could disrupt the handling of ongoing situations; it could also lead to diminished manpower or forcing others to work overtime.

But the appeals court was swayed to affirm the jury verdict for one main reason: FAMU's job description for the security officer position did not list the ability to work 12-hour shifts as an essential function. The court pointed to the fact that the document included an "Essential Functions" section, specifically describing certain tasks as "fundamental to the position," but failing to include any specified shift length among these functions. "From all of this, the jury could have reasonably concluded that the essential functions of Snead's job were those functions—and only those functions—listed as 'essential' on the job description," the court concluded.

Practical Lessons

Looking at these three cases as a whole, certain lessons stand out as "essential" to your human resources practices. First and foremost, ensure that your written job descriptions include a specific and detailed listing of each and every one of the functions that you consider to be essential to the performance of the job. Next, you might also consider including such a listing on the job application and any advertising you do for the position so that your consideration is noted consistently and thoroughly.

It might also help if you conduct a mini-audit of the job description to make sure it is "solidly anchored in the realities of the workplace" as opposed to being more of a fantasy. It is not a pleasant surprise for your human resources or legal department to learn that the carefully crafted job description is not at all grounded in reality, whether it is because positions naturally evolve over time or because the job has never actually encompassed all that was originally conceived when the description was developed. So spend time talking with supervisors, managers, and the workers themselves to make sure the description is accurate (perhaps doing so regularly during the annual evaluation period) and make any adjustments to the job description—or the job itself—as necessary.

Finally, if faced with an accommodation request and a question is raised about whether a certain function is truly "essential," work with your legal counsel to determine how a government investigator, court, or jury might examine the situation, and respond accordingly. You might even be able to experiment and try to roll out a temporary accommodation before determining that the specific function impacted is so essential that it cannot be avoided; if you are located in a jurisdiction like the 1st Circuit above, the mere act of you experimenting with a possible accommodation will not necessarily force you into accepting the accommodation on a permanent basis.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Richard R. Meneghello
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions