So, you want to change the essential functions of a particular job, do you? Let’s talk ADA.

The Americans with Disabilities Act prohibits an employer from discriminating against a qualified individual with a disability. What is a “qualified individual”? It’s someone who can perform the essential functions of the job with or without a reasonable accommodation? Ok, what’s an “essential job function”?

Or better yet, can nonessential functions of a particular job later become essential ones?

That’s what we’re going to explore today.

Sorry, you can’t telecommute anymore.

Last night, I read this opinion from an Illinois federal court. The plaintiff-employee, who suffers from multiple sclerosis, was responsible for publishing articles and other marketing communications for the defendant-employer.

Now, the employer is headquartered in Dallas, Texas.

Now, because of the heat in Dallas, Texas, the plaintiff requested an accommodation for her MS. Specifically, she asked for a telecommuting arrangement, and the employer agreed.

Everything was working well until the employer merged with another company. Given the size and breadth of the merger, the combined entity needed to change how it conducted business. One of those changes involved merging media channels and requiring everyone to work in person in Dallas, Texas. No exceptions.

Indeed, one other employee in the same position relocated to Texas, and another quit because she did not want to transfer from California.

The plaintiff asked the company to continue the same accommodation it had been providing her, but the defendant refused. However, the defendant tried to explore other alternatives, including different suitable positions within the company. But, none of that worked out. Ultimately, the defendant separated the plaintiff’s employment.

So, she sued, claiming a violation of the ADA.

Business judgment or ADA violation?

So can a company change what functions are essential to performing a particular job?

Yes, it can. I’m going to start quoting liberally from the opinion now:

Essential functions are determined by looking at factors including but not limited to the employer’s judgment as to which functions are essential, the consequences of not requiring the employees to perform the function, and past and current work experiences. The presumption is that the employer’s judgment as to what is essential is correct unless the plaintiff offers sufficient evidence to the contrary. But while the employer’s judgment is one factor to consider it is not controlling and the Court looks at the employer’s actual practices in the workplace as well.

Ok. So the employer can announce a change. But, then it has to back that up by actually following through and implementing that change.

In this particular case, there was no dispute that the employer decided to make regular attendance an essential job function after the merger. Plus, many employer witnesses corroborated that the in-person requirement was essential to mitigate the chaos of a large-scale consolidation. Furthermore, there were other non-disabled employees similarly impacted.

And even though the plaintiff has a well-established history of performing her job well while working remotely, history does not guarantee future results. That, and the company is allowed to change the way it does business.

For these reasons, the plaintiff lost her failure-to-accommodate claim.

Tips for employers.

1. “Disability” is a low burden. There was no ink spilled in this debating whether the plaintiff had a disability. Similarly, when an employee claims to have a disability, don’t exert any more psychic energy than is necessary. Your focus should be on the whether an employee can perform the essential functions of the job with or without an accommodation.
2. Explore the options. At one time, telecommuting was a reasonable accommodation in this case. Then, it wasn’t. But, did the employer fire fast? No, it worked with the employee to explore other options to accommodate her disability. Did they work? Well, no. But, if you read the opinion, the company comes off as eminently reasonable.
3. Talk the talk, then walk the walk. Your judgment counts for a lot when it comes to setting essential job functions. But, just because you “say so” doesn’t mean it “is so” unless you implement the change consistently across the board. Your business judgment plus consistency should carry the day if you have to defend an ADA lawsuit.