The essential functions of a job are those necessary for accomplishing the job’s purpose and are not marginal or peripheral. Basically, essential job functions are what must happen to accomplish the purpose of the job. A careful and thorough definition of the essential functions of all jobs within your company, with written job descriptions, can go a long way in helping you comply with the ADA.

If a job requires full-time attendance, strict adherence to a schedule or the ability to work overtime, consider including that as part of the job description.

These questions can help determine if job functions are essential:

• Must employees in the position actually perform the function? For example, if typing is considered to be essential but you have never required an employee in the position to type, then typing is not an essential job function.
• Would removing the function fundamentally change the job? An editor's job would not be the same if proofreading were no longer required.
• Is the function essential because of your company's size? A function may not be essential in a large organization, but smaller businesses often need an employee to perform many different functions that are all crucial to the job.
• Did you hire an employee for a particular expertise? If so, that specialized task would be an essential job function.

You may want to consider developing job descriptions that include functional requirements of the job such as prolonged keying, regular lifting in excess of 20 pounds, or whatever else is functionally required by the job. You could also include "environmental" functions like predictable, reliable attendance, the ability to interact professionally in an office environment, or the ability to multitask in a fast-paced environment. The more clear and current your job descriptions are, the easier your task will be in assessing a person’s ability to perform the essential functions of the job.

Reasonable accommodation under the law

The ADA applies not only to job applicants and employees who currently have disabilities, but equally to current employees who become disabled.

The ADA requires you, as an employer, to make reasonable accommodations for otherwise qualified disabled individuals if doing so will allow the employee to perform the essential functions of the job. The law is designed to require employers to remove barriers that prevent qualified applicants and employees with disabilities from performing essential job functions, provided the accommodations don’t create an undue hardship on your business.

According to EEOC regulations, reasonable accommodations include:

• adjustments to the application process so an individual with a disability can be considered for a desired position;
• changes in the work environment or in how a job is performed so an individual with a disability can perform the essential functions of the job; or modifications that enable an employee with a disability to enjoy the same employment benefits and privileges as other employees.

For example, there may be a need to modify your existing facilities so individuals with disabilities can get access to and use them. There could also be a need to revise job structures or work schedules, modify equipment or devices, provide qualified readers or interpreters or change your policies, tests or training materials.

For current employees, reasonable accommodation may include:

• restructuring job duties;
• holding a job open for a reasonable period of time while the employee recovers, if it doesn’t cause undue hardship for your business;
• reassigning a qualified employee to another vacant position; or
• limiting hours, altering the company’s physical layout to provide access or providing adaptive equipment if reasonable.

Accommodations in schedules and leaves are some of the most challenging accommodations for employers to make. The purpose of leaves as a reasonable accommodation is to allow an employee to recover to be able to return to work. The leave obligation may extend beyond any leave protected by the Family and Medical leave Act (FMLA). So far, the EEOC has not changed its position that indefinite leaves are not reasonable accommodations. In any event, employers must interact with their employees and offer reasonable accommodation before taking any adverse employment action against employees on leave. Check with your outside counsel to determine what duration of leave is reasonable given your business and policies.

The ADA requires an individualized assessment of each accommodation request. Whether a particular accommodation would be considered reasonable in relation to the ADA is directly related to the specifics of the employee's situation, the medical support you are relying on, your accommodation plan, and how clearly your business needs are articulated. The employee’s needs and desires are identified in an interactive process.

The interactive process

The interactive process is at the heart of the ADA. The employee must be involved in the dialogue about what accommodation would be effective. Once an employee requests an accommodation, you and he or she must communicate. How you interact must be reasonable under the circumstances and may involve communication in person, by telephone, by email or otherwise. The communication must allow both you and your employee to exchange information. You must take the initiative to find out what the employee’s precise disability limitations are due to the disability and what potential reasonable accommodations could be made that would overcome the limitations. You should undertake a good faith effort to identify reasonable accommodations; interacting expeditiously with your employee is often one part of that process. Although you have the final say in what accommodation you offer, your decision should, at a minimum, consider the preference of the employee. The accommodation need not be the best accommodation available as long as it is effective.

When considering reasonable accommodations, you should keep in mind that they do not have to include:

• making adjustments or modifications to help a person with daily activities on and off the job, such as prosthetic limbs, wheelchairs, hearing aids, eyeglasses or personal care attendants;
• lowering quality or production standards;
• providing amenities or conveniences that aren’t job-related and that you don’t make available to employees without disabilities, such as private hot plates, microwave ovens or refrigerators;
• making accommodations for a person with a disability who is not otherwise qualified for the job;
• hiring or promoting an unqualified individual, regardless of disability;
• hiring or retaining a disabled individual who poses a direct threat to the safety or health of himself or herself or other employees or customers, unless the threat can be eliminated by reasonable accommodation;
• disrupting an established seniority system;
• creating a direct threat to the health and safety of the workplace; or
• creating a new job for a disabled individual.

The ADA encourages sound return-to-work practices for both work-related and non-work-related impairments. Not every employee resuming work activity after illness, surgery or injury will have restrictions on performing some aspect of his or her job, but some will. It is important for employers in their return-to-work practices to distinguish whether they are providing short-term, temporary job modification (transitional work) or reasonable accommodations for the long term. This distinction can help you avoid creating a job for an employee (an unintended long-term accommodation) when the intent was to assist the healing process in the short term.

A special note about pregnancy

Normal pregnancies are not disabilities under the ADA, but pregnancy-related impairments like gestational carpal tunnel, diabetes, sciatica or edema may be disabilities given the definition under the ADAAA.

In addition to the ADA, employers must consider accommodation responsibilities under the Pregnancy Discrimination Act (PDA). In 2015, the U.S. Supreme Court created a new standard for accommodating pregnant women in the Young v. United Postal Services case. The EEOC then issued revised Enforcement Guidance on the ADA and the PDA that aligned with the Young case.

In a case of disparate treatment discrimination, the courts will consider the following:

• PDA plaintiffs may make out the prima facie (threshold) requirements of a case of discrimination by showing "that she belongs to the protected class, that she sought accommodation, that the employer did not accommodate her, and that the employer did accommodate others 'similar in their ability or inability to work.'" This is not intended to be an onerous burden.
• Once the prima facie case is established, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for treating the pregnant worker differently than a non-pregnant worker similar in his or her ability or inability to work. Such reasons cannot consist simply of a claim that it is more expensive or less convenient to add pregnant women to the category of those 'similar in their ability or inability to work' whom the employer accommodates.
• Even if an employer can assert a legitimate non-discriminatory reason for the different treatment, the pregnant worker may still show that the reason is pretextual by providing sufficient evidence that the employer's policies impose a significant burden on pregnant workers, and that the employer's "legitimate, nondiscriminatory" reasons are not sufficiently strong to justify the burden, but rather — when considered along with the burden imposed — give rise to an inference of intentional discrimination.

Based on the above, any employer that has a policy of accommodating a large percentage of non-pregnant employees with limitations while denying accommodations to a large percentage of pregnant employees will find it difficult to counter the argument that it is treating pregnant employees worse than non–pregnant employees.

Equal Employement Opportunity Commission Resource

Did you know?

Did you know that Unum can help you keep your employees at work or assist them as they return to work? For example, some Unum Long Term Disability Insurance policies may include the following worksite modification benefit provision (not available in CA):

"HOW CAN UNUM HELP YOUR EMPLOYER IDENTIFY AND PROVIDE WORKSITE MODIFICATION?

A worksite modification might be what is needed to allow you to perform the material and substantial duties of your regular occupation with your employer. One of our designated professionals will assist you and your employer to identify a modification we agree is likely to help you remain at work or return to work. This agreement will be in writing and must be signed by you, your employer and Unum. When this occurs, Unum will reimburse your employer for the cost of the modification, up to the greater of $1,000, or the equivalent of two months of your monthly benefit. This benefit is available to you on a one-time only basis."

With this provision in your policy, it means that we not only can help you by assisting your employees in returning to work but also by helping your employees stay at work.

Some of the accommodations that might be provided under this provision include adaptive equipment such as ergonomic chairs, magnifying screens and split or one-handed keyboards, plus recommendations on how to modify work schedules.