You have an injury, temporary medical condition, or permanent disability and need a workplace accommodation to continue doing your job. You request an accommodation that would allow you to perform all of your major job responsibilities, but not some of the minor ones. Your employer denies your request because the accommodation would not allow you to perform all of your job responsibilities. Do you have any recourse?
You might. Under the Americans with Disabilities Act (“ADA”), which applies to private employers, and Section 501 of the Rehabilitation Act of 1973 (“Rehabilitation Act”), which applies to the federal government, an employee with a disability is entitled to a workplace accommodation that enables her to perform the “essential functions” of her job. There are two possible exceptions to this requirement: 1) if the accommodation would impose an “undue burden” on the employer; or 2) if the accommodation requires eliminating or changing any “essential functions” of the employee’s job.
Not surprisingly, employers and employees often disagree about what constitutes an “essential function” of an individual’s job. For example, an employer may insist a particular duty is “essential” even though an employee performs it only a handful of times per year or other employees share the responsibility for getting it done. Inevitably, disagreement over which job functions are “essential” leads to disputes over whether employees are entitled to workplace accommodations that allow them to perform most, but not all, of their duties. Employees who can demonstrate an accommodation would enable them to perform all of the “essential functions” of their jobs—even if some non-“essential” duties went by the wayside—are in the best position to seek and receive that accommodation from their employers.
According to the regulations implementing the ADA and Rehabilitation Act, the term “essential functions” means the “fundamental job duties of the employment position” at issue. 29 C.F.R. § 1630.2(n)(1). “Marginal functions” of a position are not considered “essential”. Id.
Contrary to the view of many employers, the fact that an individual’s job description lists a particular task or duty does not automatically mean it is “essential” to the job. Rather, whether a particular job function is “essential” requires a fact-specific inquiry that is tailored to the position and workplace at issue. Factors that will determine whether a job function is “essential” under the ADA or Rehabilitation Act include:
- The amount of time spent on the job performing the function;
- The consequences of not requiring the employee to perform the function;
- The terms of any applicable collective bargaining agreement;
- The work experience of employees previously in the job; and
- The work experience of employees presently in similar jobs.
29 C.F.R. § 1630.2(n)(3).
Importantly, while it may be relevant, an employer’s own judgment that a particular job function is “essential” does not end the inquiry. For example, in Jeffrey v. Ashcroft, the court ordered the Bureau of Prisons to waive a physical test to accommodate a prison chaplain. The court held that responding to emergencies was not an “essential function” of his job, even though the Bureau had a policy requiring all employees to respond in the event of an emergency. In coming to this conclusion, the court considered the fact that the chaplain had responded to only five emergencies in the course of a year and that chaplains hired at other facilities were not required to demonstrate their physical ability to respond to emergencies.
Finally, it is important to keep in mind that while you may be entitled to an accommodation, you may not be entitled to the accommodation you request if another, equally effective accommodation is available to you. The “interactive process” provided for by the ADA and Rehabilitation Act requires give-and-take on behalf of both employers and employees.
So, with respect to the above question, if the minor job responsibilities not covered by the accommodation you requested nevertheless could be considered “essential functions” of your job, your employer may be permitted to deny the accommodation. But, if those responsibilities cannot accurately be considered “essential,” you may be able to challenge your employer’s decision.
If you were denied a workplace accommodation you believe would have enabled you to perform the “essential functions” of your job, KCNF may be able to help.
Jessica Westerman is an associate attorney at KCNF.