The essential functions of a job are those duties that an employee must be able to perform, with or without reasonable accommodation. The Equal Employment Opportunity Commission (EEOC) advises that employers should consider the following factors to determine whether a function is essential:
- whether the position exists to perform the function;
- the number of other employees available to perform the function or among whom the performance of the function can be distribute; and
- the degree of expertise or skill required to perform the function.
Position descriptions provide strong evidence of a job’s essential functions. Other evidence of essential functions includes the actual work experience of incumbents and past employees in a particular job; the amount of time spent performing a function; and the consequences of not requiring an employee to perform a function.
A recent decision from the Fourth Circuit Court of Appeals provides a useful reminder of the importance of knowing and being able to substantiate the essential functions of the jobs your employees perform. In EEOC v. McLeod Health, Inc., No. 17-2335 (4th Cir. Jan. 31, 2019), the EEOC filed suit on behalf of a former employee of McLeod Health, Inc., an operator of hospitals and healthcare facilities in South Carolina. At issue was whether the Company violated the Americans with Disabilities Act (ADA) by requiring the employee to undergo a work-related medical exam and discharging the employee because of her disability.
The discharged employee’s job was to edit McLeod’s internal employee newsletter. Her duties included interviewing employees and writing about Company events. She travelled to McLeod’s facilities to interview employees and obtain information for the newsletter. The employee has a physical disability that results in mobility issues. Despite this limitation, the employee satisfactorily performed her duties for nearly 30 years. The Company agreed that, prior to the events at issue in the lawsuit, the condition did not impact the employee’s “ability to perform the essential functions of her job.”
At some point the employee’s supervisor expressed concerns about the employee’s performance, including missing deadlines, tardiness, and attitude-related concerns. The supervisor met with the employee, but did not address health-related concerns. Around this same time period, the employee fell three times in a four-month span. The Company required a fitness for duty evaluation, which led to the recommendation for an additional test — a functional capacity exam, which would evaluate if the employee could physically perform her job duties. The second exam resulted in recommended travel restrictions, use of an assistive device, and a parking space to accommodate the employee. The employee requested accommodations based on the therapist’s recommendation, though she did not think she needed an accommodation to perform her job. McLeod did not think the employee could perform the job with these accommodations because they would prevent her from travelling. The Company placed her on medical leave and fired her after six months.
In assessing whether the trial court properly granted summary judgment in the employer’s favor, the Fourth Circuit had to decide whether there was a genuine dispute of material fact about the employee’s essential job functions. This mattered because medical examinations must be “job-related and consistent with business necessity.” Similarly, knowing the essential functions was necessary to determine if the employee was a qualified individual for purposes of her disability discrimination claim.
Here, there was a genuine dispute of fact about the essential functions, because there was conflicting evidence about whether the employee did in fact need to travel. A jury, the court held, should decide that factual question. As the Court stated, “[I]t is not certain that navigating to and within McLeod’s campuses was essential to [the employee’s] job. By the same token, it is not certain that [the employee’s] medical exam was lawful.”