Thursday, December 19, 2013

Accuracy counts in drafting job descriptions (a lesson on ADA reasonable accommodations)

Do you have written job descriptions for all of your employees? Henschel v. Clare County Road Commission (6th Cir. 12/13/13) illustrates that if you’re going to claim that a job function is essential, you should probably include it in a written job description.

Wayne Henschel worked as an excavator operator for Clare County Road Commission. He lost his left leg above the knee in a motorcycle accident. His employer refused to permit him to continue operating the excavator, claiming that the ability to haul the excavator to the job site was an essential function of the position. Among the factors that the court of appeals used to reverse the trial court’s grant of summary judgment to the employer on Henschel’s ADA reasonable accommodation claim was the fact that it had omitted the hauling function from its Operator-Excavator job description.

Whether a job function is included in a job description is only one of seven factors courts consider in determining whether that function is essential to the job:

  1. The employer’s judgment as to which functions are essential;
  2. Written job descriptions prepared before advertising or interviewing applicants for the job;
  3. The amount of time spent on the job performing the function;
  4. The consequences of not requiring the incumbent to perform the function;
  5. The terms of a collective bargaining agreement;
  6. The experience of past incumbents in the job; or
  7. The current work experience of incumbents in similar jobs.

In this case, the exclusion of hauling from the Operator-Excavator job description was not dispositive in the case, but it certainly didn’t help the employer’s cause.

Here are the practical takeaways for employers:

  1. You should have written job descriptions for each position in your organization. They not only help establish reasonable expectations for what you expect from your employees in a position, but it also helps set a baseline for what you do, or do not, have to reasonably accommodate. You must provide a reasonable accommodation to enable a disabled employee to perform the essential functions of a job; you do not, however, have to accommodate the non-essential functions.

  2. Accuracy counts. It is hard to establish a job function as essential if it’s omitted from a written job description.

  3. Conversely, just because you list a function as “essential” doesn’t mean a court has to take your word for it. If the other six factors cut against you, you’ll have a hard time showing that a job function is essential no matter what your document says.

  4. As jobs change, so should their written descriptions. It’s not enough to file away a job description after it’s prepared. You should periodically review it to make sure it’s current, and updated when needed because of changes to the job.