Rarely-performed duties can still be essential ones under the ADA

I have another HR tip related to yesterday’s blog post and accommodating employees under the Americans with Disabilities Act and what counts as an essential job function.

Generally, the essential functions of the job are the ones that employees perform the most. However, there are situations where rarely-performed tasks can be essential too.

For example, if I hire an employee to shovel snow at my company’s Honolulu office, there may not be much for them to do on most days, weeks, or even years.

But I’ll tell you what? When the ten-day forecast calls for snow, that employee better not tell me that they can’t perform the job because of their bad back.

Yes, I’ll engage in an interactive good-faith dialogue to see how I can accommodate the employee without undue hardship. But the accommodation won’t involve removing snow removal from the employee’s required duties because it is essential.

In the case we discussed yesterday, the plaintiff sought a lieutenant position in a correctional facility. He had a back injury, and a doctor’s note he had provided his employer stated that he needed to “avoid situations in which there is a significant chance of violence or conflict.”

Now, it wasn’t as if the lieutenant position would require the plaintiff to tussle with inmates on the daily. However, there was a chance that he would have to use physical force.

Just a chance?

The plaintiff argued that because some assignments rarely require the use of physical force, it was not an essential function of the job. And if it’s not an essential job function, then the defendant could promote him to lieutenant and remove that job duty to accommodate him.

Is he right? In this case, no, said the Seventh Circuit.

If the essential-function inquiry were about probabilities, [the plaintiff] would have a stronger argument. Yet we cannot lose sight of the need for emergency responses in law enforcement and public safety agencies… As the district court observed, many police officers never discharge their service weapons in the line of duty, but that does not mean that weapons proficiency for all is optional. Or similarly, as we have noted, while a firefighter may not often have to carry an unconscious adult from a burning building, failing to require that he ably perform this function when called upon would run counter to his duty to public safety…So while [the plaintiff] has offered evidence that the right assignment would mean that he might never need to engage physically with any violent inmates, that evidence does not answer whether being able to do so is an “essential function” for correctional lieutenants.

These situations are fact-specific. But outside of public safety and historically cold island weather, a function performed only rarely may still be essential. An essential function need not encompass most of an employee’s time or even a significant quantity of time.

To better ensure that employees understand what job functions are essential, identify them in the job description and have the employee sign off on them.