Don't HR Alone #15 - Job Descriptions
Are Your Job Descriptions Accurate? That Could Make a Difference in an ADA Case
In today’s modern workplace, many employers have considered alternatives to traditional, in-office, 40-hour-per-week positions. Some employers have telecommuting options for certain employees, while others provide options for flexible schedules. However, not all positions are suited for work outside a traditional office setting and some positions cannot be as flexible as others. What happens when an employee who is protected under the Americans with Disabilities Act (ADA) requests to work from home, wants a flexible schedule, or asks for an exemption from overtime as an accommodation? Several factors determine whether an employee is protected by the ADA, including whether the employee can perform the essential functions of his or her job with or without accommodation. Job duties make up these essential functions. Therefore, a job description that accurately describes the job duties and expectations for a position can help an employer show that an employee is not a “qualified individual” under the ADA and protect the employer from liability. ADA cases are dependent upon the specific facts and circumstances triggering the accommodation request and the employment environment, and a solid job description alone is not enough. However, in conjunction with other factors included in the regulations—such as the amount of time an employee spends performing the function, consequences of an employer not requiring the employee to perform the function, and work experience of employees in similar jobs—the result can be favorable for an employer. 29 CFR § 1630.2(n)(3). Recent case law addresses how a job description and these other factors can impact ADA lawsuits. Request for More Frequent Breaks and a More Flexible Schedule Having a job description with clear requirements for regular attendance and/or punctuality could impact whether an employee’s request for more frequent breaks and/or more scheduling flexibility during the workday meets the essential functions of a job. In a case decided earlier this year by the 6th Circuit, the court determined that an employee who requested leave from work for treatment, more flexibility in her scheduling, and additional breaks during her shift as accommodation for her disability could not meet the essential functions of her job because the position required regular attendance and punctuality. Williams v. AT&T Mobility Services LLC, No.16-6078 (6th Cir. 2017). The court considered the employer’s job description for the employee’s position (a customer service representative) and the employer’s strict adherence to written attendance guidelines, as two determinative factors when deciding in favor of the employer. Overtime If an employee’s expressed job duties require overtime, then the employee may not be able to meet the essential job functions if they are no longer able to work longer hours. The ability to meet overtime requirements was one of the issues in a case decided by the 11th Circuit Court of Appeals last year. Agee v. Mercedes-Benz U.S. International, Inc., No. 15-11747 (11th Cir. 2016). In the Agee case, the employee’s job description indicated that all employees in the position would be assigned work as production and other needs required, and employees needed to have flexibility in moving between different job assignments and work schedules. Additionally, the employer’s handbook required employees to work daily overtime and to expect a reasonable amount of overtime to be assigned. In practice, employees were regularly scheduled to work more than 40 hours a week. Because the plaintiff could no longer work more than 40 hours a week, the court found she could not perform the essential functions of her job. Telecommuting A job description should also contain information about whether the essential functions of a job need to be performed inside the employer’s offices. While some employers have telecommuting options for employees or may consider telecommuting schedules (partial or whole) to accommodate employees, the Equal Employment Opportunity Commission (EEOC) recognizes that not all jobs can be performed from home. The EEOC advises employers to review essential functions of a job to determine whether it can be performed at home, and has acknowledged that an employer is not required to remove any essential job duties to permit an employee to work from home. Reviews of the essential functions and requested accommodation can be accomplished through an interactive process with the employee. Furthermore, if the only barriers to working from home are non-essential functions of the job, then the EEOC believes the employer may need to reassign those duties. When making this determination, employers can also consider other factors such as the ability to adequately supervise, availability of necessary equipment, and whether in-person interaction with colleagues or clients is necessary. The 6th Circuit in EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. 2015) considered similar factors in finding a position requiring significant interaction with other employees, vendors, and clients made more frequent in-office attendance an essential function of the job. While some telecommuting on a limited basis could be accommodated, the plaintiff in the case required four days a week and, therefore, could not meet this requirement. While the job description did not play a role in the case, having a job description that reflects the need to be on site for collaboration could be helpful. Interaction with Other Laws Discussing ADA reasonable accommodation issues often leads to questions about the impact on workers’ compensation light duty requirements or additional accommodation after exhausting Family and Medical Act (FMLA) leave. Many employers use light duty and other temporary positions to bridge employees who are recovering from an occupational injury until they are released to full duty. The ADA does not require employers to create new light-duty positions as accommodations. However, if light-duty positions exist or are created for occupationally-injured employees, the employer may be required to offer such a position as a reasonable accommodation. Additionally, if an employee exhausts FMLA leave but requires additional accommodation, the employer must begin the interactive process with the employee to determine whether the essential functions of the job can be met or an undue hardship would result. Conclusion Having accurate job descriptions aids employers under other employment laws and regulations as well, including the Fair Labor Standards Act, the Family and Medical Leave Act, and potentially other discrimination laws (federal or state). Employers are encouraged to review their job descriptions to ensure they accurately reflect the requirements of each job title or position within the company. Additionally, if a request for accommodation is made and other avenues for leave (workers’ compensation or FMLA) are not applicable or exhausted, employers are encouraged to work with counsel to examine the request and receive guidance on the required interactive process. Employers should also keep in mind that state and local laws may provide similar or greater protections to individuals with disabilities than those under the federal ADA. It’s a good idea for employers to become familiar with disability discrimination laws in all states where they have operations.