EEOC official: 'Qualification standards' could lead to ADA violations
Employers need to ensure job descriptions accurately reflect the essential functions of a given job, but may also need to ensure those functions aren't contradicted by employers' "qualification standards," a U.S. Equal Employment Opportunity Commission (EEOC) official said during a Disability Management Employer Coalition (DMEC) webinar last week.
At the center of the discussion was the method by which employers decide whether an applicant with a disability is qualified to perform a given job under the provisions of the Americans with Disabilities Act (ADA).
EEOC defines the term "qualified" in two parts, Christopher Kuczynski, assistant legal counsel and director of EEOC's ADA/GINA policy division, said: 1) the individual satisfies the skills, education, experience and other-job related requirements for the position; and 2) the individual can, with or without a reasonable accommodation, perform the essential functions of the job.
Standards or functions?
Employers must be aware of the difference between essential functions and qualification standards, Kuczynski said. EEOC's regulations say that qualification standards are: "personal professional attributes including the skill, experience, education, medical, physical, safety and other requirements."
"Essential functions" are what an employee actually does on the job — lifting packages, repairing computers and the like. "Qualification standards," on the other hand, are supposed to predict, Kuczynski said, whether an applicant can perform the essential functions of the job.
Again, this distinction is important, Kuczynski said, and HR managers sometimes confuse the two. The requirement that an applicant be able to lift 30 pounds, which may seem an essential function of a job, would actually be properly classified as a qualification standard, according to EEOC.
But employers need to be certain their qualification standards are actually reflective of whether a candidate can perform essential functions. Otherwise, they might run into trouble, particularly if they decide to exclude candidates with a certain condition (i.e. diabetes) outright.
"Employers need to be very careful about those standards, and really avoid them in most instances," Kuczynski said. "There are going to be people who may be able to perform essential functions in spite of the fact they have certain conditions, and the ADA is always about an individualized assessment of applicants and employees."
Kuczynski cited Gwendolyn G. v. U.S. Postal Service, in which a postal worker with a 10-pound lifting restriction was excluded from a job because the employer said the position required the ability to lift 70 pounds. In that case, EEOC found that those currently in the position had to lift only 35 pounds at most.
"The standard failed," Kuczynski said. "It was not job-related and consistent with business necessity because it didn't accurately reflect what people in the job did."
The telework connection
Underlying the discussion of the ADA's employment provisions is the issue of accommodation, and remote work has increasingly become part of that conversation.
"[Telework] should be in your tool box; that is generally going to be a reasonable accommodation," said presenter Gail Cohen, director, employment law and compliance at Matrix Absence Management, Inc. "Your focus should really be on, is it effective — meaning does it enable the person to perform their job functions — and does it constitute an undue hardship for you as an employer?"
An employer is not required to get someone to the workplace and because of this, "some employers have assumed that that means any kind of a barrier to performing a job that involves physically getting to the workplace, that that accommodation does not have to be made," Kuczynski, said. "The fact that the barrier that the person is experiencing has to do with getting to the physical workplace is not a reason for denying the person telework."
One way to determine whether attendance is actually an essential function, Kuczynski said, is to ask: can you really adequately supervise this employee? "If the supervision and the teamwork can be carried out in a telework situation, the fact that those two things are part of the job or requirements of the job don't necessarily mean that telework can't be provided."
Employers may be successful in asserting that regular attendance is an essential function of a given job, but the case law behind that assertion is still fact-specific. A ruling out of the 9th U.S. Circuit Court of Appeals, for example, upheld summary judgment in favor of an employer that required regular attendance as an essential function for a supervisor position. But the 6th Circuit found that full-time attendance was not necessary for an HR generalist who was in the process of returning from maternity leave.
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