- A law-enforcement employee with post-traumatic stress disorder as a result of his military service was unable to satisfy an essential function of his job: round-the-clock, on-call availability, the 5th U.S. Circuit Court of Appeals has ruled (Abshire v. Louisiana Department of Wildlife and Fisheries, No. 18-30671 (5th Cir. Apr. 11, 2019)).
- The employee experienced memory and concentration limitations, as well as depression and anxiety. He allegedly repeatedly asked for accommodation requests, including more frequent feedback, that were denied. One day, after taking his medication late, he was sent home early due to unusual behavior, and his firearm and vehicle were confiscated; he was eventually terminated.
- He sued, alleging disability discrimination in violation of the Americans with Disabilities Act (ADA) and a federal district court granted summary judgment in favor of the employer, which the 5th Circuit affirmed. The courts did not reach the merits of the plaintiff's case because he could not satisfy (with or without a reasonable accommodation) an essential function of the job — 24/7 availability. Therefore, he was not a qualified individual with a disability entitled to the law's protections.
According to the U.S. Equal Employment Opportunity Commission (EEOC), "essential functions are the basic job duties that an employee must be able to perform." An employee who cannot perform these essential functions, either with or without a reasonable accommodation, is not qualified for the job and cannot invoke the ADA. Factors EEOC considers in determining whether a function is essential include:
- Whether the reason the position exists is to perform that function.
- The number of other employees available to perform the function or among whom the performance of the function can be distributed.
- The degree of expertise or skill required to perform the function.
Job descriptions can help set expectations for employees and also create a baseline for what employers do and do not have to reasonably accommodate, Jon Hyman, an attorney with Meyers, Roman, Freidberg & Lewis, has said on his Ohio Employer Law Blog. But they are just one factor of many. EEOC also looks at the actual work experience of present or past employees in the job, the time spent performing a function, the consequences of not requiring an employee to perform a function, and the terms of any applicable collective bargaining agreements.
Unsurprisingly, what's considered an "essential function" varies greatly from job to job. One court recently concluded that the ability to work a 12-hour shift was not an essential function for a campus security officer, for example, while another court said the ability to work overtime was an essential function for a UPS driver. Even something as basic as regular attendance for supervisors can be considered an essential function.