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When is a job function essential' under the ADA?

Oklahoma Employment Law Letter - October 2009

By Sam Fulkerson

With the significant amendments to the Americans with Disabilities Act (ADA) earlier this year and the Equal Employment Opportunity Commission’s (EEOC) anticipated revisions of the Act’s regulations before year’s end, even the most basic definitions of the law are in flux. Of course, it will fall to the courts to interpret and apply any changes to the Act. The Tenth Circuit is the controlling federal court for Oklahoma, and it is generally conservative in its interpretation of employment law. Although the following opinion addresses the preamended ADA, it indicates that the court will continue its conservative approach under the new law.

The case required the court to determine whether a job function that is rarely required in the normal course of an employee’s duties is an essential job function under the ADA. The court concluded that when the potential consequences of employing an individual who is unable to perform the functions of the job are sufficiently severe, the function may be deemed essential.

Background
Barbara Hennagir was employed as a physician’s assistant at the Utah Department of Corrections (DOC). When she was hired in 1997, the DOC didn’t require peace officer standards and training (POST) certification for medical and clinical staff. In 2002, however, it began requiring POST certification for all clinical personnel whose job duties required contact with inmates to ensure security and safety. Because Hennagir’s position included inmate contact, she was required to obtain POST certification.

Hennagir has lupus, osteoarthritis, and rheumatism, among other conditions. She has had both hips replaced and has undergone surgery on her shoulder. As a result, she is limited in certain activities, including sitting, sleeping, lifting, bending, and flexing. She attended the POST training course but was given permission not to participate in the physical activities because of her medical condition.

In 2003, Hennagir was notified that because she was unable to acquire POST certification, she was being offered a physician’s assistant position at another facility in which inmate contact isn’t required. She was told that if she declined the job, located 100 miles from her home, she would be terminated.

Charges abound
Hennagir filed an administrative grievance asserting that the threat of termination constituted harassment on the basis of her disability. She also filed a charge of discrimination with the EEOC alleging a violation of the ADA. In 2004, the DOC issued a final determination on Hennagir’s grievance, deciding that all physician’s assistants at her facility were required to be POST-certified and that she had to choose between the alternative position and termination.

Rather than choose, Hennagir took medical leave under the Family and Medical Leave Act (FMLA). When she exhausted her FMLA leave, she went on long-term disability leave for nearly a year, during which time the DOC retained her position. While on leave, she filed a second EEOC charge alleging that a less than satisfactory performance evaluation and the proposed transfer were in retaliation for her complaints of disability discrimination.

In March 2005, before Hennagir returned from medical leave, the EEOC found reasonable cause to believe that she had been the victim of disability discrimination and that the DOC’s offer to transfer her wasn’t a reasonable accommodation. The DOC made Hennagir an alternative offer — a medical position at her facility auditing, reviewing, and coordinating contract care of inmates at the same salary. She rejected the offer and demanded that the POST certification be waived for her because it wasn’t an essential job function. In August, the DOC terminated her employment.

The EEOC issued Hennagir a right-to-sue letter, and she filed suit for disability discrimination, denial of reasonable accommodation, and retaliation in violation of the ADA. The district court dismissed her case, concluding that she was “neither disabled nor qualified for the position at her facility” (although under the amended ADA, she would be). It determined that her proposed accommodation (waiving the training requirement) wasn’t reasonable. Her retaliation claim also failed because the DOC had taken the challenged employment actions for business-related reasons.

Tenth Circuit’s decision
On appeal, the Tenth Circuit explained that to determine whether POST certification is an essential job function, it first needed to determine whether the DOC requires all employees in Hennagir’s position to satisfy the job-related requirement, which it does. When determining whether a job function is essential, the court considers several factors, including:

  • the employer’s judgment of which functions are essential;
  • written job descriptions prepared before advertising or interviewing applicants for the job;
  • the amount of time spent performing the function;
  • the consequences of not requiring the employee to perform the function;
  • the work experience of past employees in the job; and
  • the current work experience of employees in similar jobs.

The court noted that the analysis “is not intended to second guess the employer or to require it to lower company standards. . . . Provided that any necessary job specification is job-related, uniformly enforced, and consistent with business necessity, the employer has a right to establish what a job is and what is required to perform it.” It also noted that the “essential function” inquiry isn’t conducted in terms of the individual’s hire date: “The ADA does not limit an employer’s ability to establish or change the content, nature, or functions of a job.”

The court found that DOC decision-makers unanimously agreed on the importance of POST certification and that all physician’s assistants at Hennagir’s facility were required to have it. According to the court, even though the function is performed infrequently, the potential for performance is constant, and the consequence of failing to obtain certification could be a serious threat to security and employee safety. Thus, the court found the certification requirement to be an essential function.

The Tenth Circuit next examined whether any reasonable accommodation would enable Hennagir to perform the challenged function. It summarized her requested accommodation as allowing her to retain the same job duties (perhaps with a different title) without completing POST certification.

The court stated that reasonable accommodations may include “job restructuring, part-time or modified work schedules, reassignment to a vacant position, . . . [and] appropriate adjustment or modifications of examinations, training materials or policies.” It added that although “the idea of accommodation is to enable an employee to perform the essential functions of her job, an employer is not required to accommodate a disabled worker by modifying or eliminating an essential function of the job.”

The court concluded that Hennagir’s proposed accommodation failed because, in effect, she requested that the DOC eliminate an essential job function. Her request would have required the creation of a new position, and according to the court, “It is not reasonable to require an employer to create a new job for the purpose of reassigning an employee to that job.”

Finally, Hennagir argued that the DOC refused to engage in the interactive process to develop a reasonable accommodation. But the court held that it didn’t have to rule on that claim because “even if an employer fails to fulfill its interactive obligations to help secure a reasonable accommodation, the [employee] will not be entitled to recovery unless she can also show that a reasonable accommodation was possible” — which Hennagir failed to do.

Bottom line
The Tenth Circuit applies a narrow test in determining whether a job function is “essential” under the ADA. Even a rarely performed function can be essential if the employee’s inability to perform it could result in serious safety or performance consequences.