Thursday, October 18, 2018

Essential functions are judged by operational realities, not job descriptions

Tony Gunter worked as a press operator for Bemis, Inc., printing graphics for the outside of Huggies diapers. In January 2013, he injured his right shoulder on the job, continued to work for the next seven months, and ultimately opted for surgery when his ongoing physical therapy did not cure the injury.

He returned to his press operator job in December 2013 with temporary restrictions: no reaching with his right arm and no performing overhead work.

In June 2014, Gunter's doctor authorized his return to full duty, with restrictions: no overhead work with his right arm; no lifting more than 40 pounds, occasional lifting of up to 40 pounds, and frequent lifting of 20 pounds from floor to waist; and occasional lifting of up to 20 pounds from waist to chest; and no overhead lifting.

Gunter continued working pursuant to those restrictions until July 2, 2014, at which time Bemis decided that it could no long accommodate him, as his job description required him to be able to perform medium physical demands, including strength/lifting/carrying of the upper right extremity. Gunter remained on leave until November 4, 2014, at which time Bemis terminated him for his inability to perform the essential functions of the job.

The 6th Circuit Court of Appeals affirmed [most of] the jury's nearly $600,000 verdict. On the issue of liability, it concluded that the realities of how Bemis required Gunter to perform his job, and not the words written on the page of his job description, controlled the bona fides of the essential functions of his job. And the reality was that lifting outside of Gunter's restriction was just not required.

The jury heard evidence that Gunter met the job’s lifting requirements. With his restrictions, Gunter could lift 40 pounds from the floor to his waist up to one-third of the time. Other evidence showed that Bemis encourages employees not to lift anything over 40 pounds by themselves. The jury also heard that Bemis has lifting equipment that employees can use to lift many objects, even if an object weighs as little as 20 pounds. Press workers must lift ink buckets that weigh 20 to 30 pounds and gears that weigh between 15 and 40 pounds. But employees can ask their coworkers to help lift the heavier gears and often do. In fact, some smaller employees had asked Gunter for help carrying heavier equipment, including the gears. Employees also use ladders for equipment that needs to be lifted higher, establishing an option for workers, like Gunter, who could not lift over their waist.

The jury also heard evidence that Gunter could do the other parts of his job, even after accounting for limits on working over his head with his right arm and outstretching his right arm. Evidence showed that press assistants do not need to do overhead work, and Gunter learned to use his left arm to complete other duties.

In other words, Gunter's job descriptions wasn't fit for the diapers for which he was printing graphics.

Indeed, a written job description is only one of seven factors courts consider in determining whether a stated 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.

Thus, written job descriptions are important, but are not dispositive of a job's essential functions. Just because you list a function as "essential" doesn't mean that a court has to take your word for it. If the other six factors show otherwise, then they will carry the day, and not your written job description.

Do not, however, mis-assume that you should not have written job descriptions. To the contrary, 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 help 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. A job description is only part of the story of whether a job functions is essential; it is rarely ever the whole story.

* Photo by Max Hofstetter on Unsplash