Federal Appellate Courts Provide Guidance on Essential Functions Under the ADA

June 27, 2018

Two U.S. Courts of Appeals have issued opinions on the essential functions of a job under the Americans with Disabilities Act (ADA), specifically the ability to work overtime and the ability to work rotating shifts.

Working Overtime Can Be an Essential Function. In Faidley v. United Parcel Service of America, Inc., the U.S. Court of Appeals for the Eighth Circuit held that the essential functions of a delivery driver job include working overtime, and an employee who was restricted by his doctor to working eight-hour shifts was therefore unable to perform the essential functions of that job, rendering him unqualified for the position.

UPS explained that drivers’ workloads could increase unpredictably, particularly during the holiday season. Drivers also dealt with unpredictable weather, which could affect delivery schedules. If a driver could not work overtime, other drivers would have to complete his deliveries or the packages would not be delivered timely – either result having a negative impact on the business. The court noted that the overtime requirement was set forth in the job description, and also had been collectively bargained with the union.

Working Rotating Shifts Can Be an Essential Function. The ability to work rotating shifts was found to be an essential function of an assistant restaurant manager position by the U.S. Court of Appeals for the First Circuit, in Sepulveda-Vargas v. Caribbean Restaurants, LLC. Following an attack at gunpoint, the employee was diagnosed with depression and PTSD, and he requested a permanent fixed schedule as an accommodation. Although he was initially granted the fixed schedule, the employer later informed him he would need to resume working the rotating schedule.

The employer established that the rotating schedule was necessary for equal work distribution among the managerial staff, and that permanently granting the employee a fixed schedule would require the other managers to work less desirable shifts. The court noted that the employer’s judgment as to what was an essential job function was of significance. The essential nature of the requirement is evidenced by a job description containing the requirement. Other considerations include the consequences of not requiring the performance of the function, the work experience of past incumbents in the position, and the current work experience of those in similar jobs.

The court also noted that granting the exemption from the requirement on a temporary basis did not render it non-essential. “To find otherwise would unacceptably punish employers from doing more than the ADA requires, and might discourage such an undertaking on the part of employers.”

Lessons Learned: There are several lessons that can be drawn from these cases. First, employers should be thoughtful about what is an essential function of the job and how they can establish that the function is, in fact, essential. Demonstrating the negative impact if the function is not performed is helpful to that analysis. In addition, it is useful to list particularly important functions in a job description and, if applicable, to engage the union in discussions over those critical job functions – these also help establish the essential nature of those functions. Other helpful indicia are past and present performance of those functions by those in the position.

Employers should also be aware that exempting the performance of a job function temporarily does not necessarily mean that they will be required to provide that same accommodation on a permanent basis. Note, however, that the longer the exemption is provided, the weaker the argument that the function is actually essential will be.

Finally, situations may arise where an employee insists that he or she can perform functions that the doctor has restricted. However, as the Eighth Circuit stated, the ADA “does not require an employer to permit an employee to perform a job function that the employee’s physician has forbidden.” Thus, employers can rely on the limitations set forth by a doctor, even if the employee wishes to ignore them.